Covenants of the Company. The Company covenants and agrees with the Underwriter that: 6.01. The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. 6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised. 6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (Zion Oil & Gas Inc), Underwriting Agreement (Zion Oil & Gas Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective notify you promptly upon becoming aware of, and will advise the Underwriter promptly and, (if requested by the Underwriter, you) will confirm such advice in writing writing, (i) when the Registration Statement has become effective (if such Registration Statement has not become effective prior to the execution of this Agreement), if and when any Prospectus is mailed (or otherwise sent) for filing pursuant to Rule 424 under the Securities Act, and when any post-effective amendment thereto thereafter to the Registration Statement becomes effective, ; (ii) any comment of any or request by the Commission or any other federal or state agency for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or prohibiting or restraining the suspension use of any Offer Document as a "proxy" statement or "soliciting material" under the Exchange Act; (iv) the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from the qualification of the Units for offering New Securities under state securities or sale in any state or jurisdiction, Blue Sky laws or the initiation of any proceeding for such purposes and that purpose; (ivv) within the period of time referred to in Section 6.03 below, of the happening of any event that which in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus (as then amended untrue or supplemented) untrue in any material respect or that which requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or in the light of the necessity circumstances under which they were made not misleading; (vi) the occurrence of any event which would cause the Company to amend withdraw or supplement terminate the Prospectus Exchange Offer or would permit the Company to exercise any right not to accept Old Securities tendered for exchange; (as then amended or supplementedvii) to comply with the Securities Act or any other lawinformation reasonably available to the Company relating to the Exchange Offer which you may from time to time reasonably request. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the New Securities under state securities or Blue Sky laws, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible practicable time.
6.02(b) The Company will use reasonable efforts to cause the Registration Statement and any post-effective amendments thereto to become effective as promptly as practicable. The Company will file no such amendments and supplements or make no such changes to which you shall object in writing or which are not in compliance in all material respects with the Securities Act or the Exchange Act. The Company will prepare and file with the Commission, promptly upon your request, any amendment to the Registration Statement or make any amendments or supplements to the Prospectus which may be necessary or advisable in connection with the Exchange Offer so long as each such amendment or supplement complies with all applicable laws, and will use reasonable efforts to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of cause the Registration Statement and thereafter from time to time, for such period become effective as in promptly as practicable.
(c) Prior to the written opinion issuance of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerNew Securities, the Company will deliver use reasonable efforts to obtain the Underwriter and each Selected Dealer through whom Units registration or qualification of the New Securities under the securities or Blue Sky laws of such jurisdictions as may be sold, without charge, as many copies required for the consummation of the Prospectus Exchange Offer.
(d) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any amendment or supplement theretousury laws against the holders of the New Securities.
(e) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance will fully comply with the applicable provisions of Rules 424 and 430A under the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereoftimely manner.
Appears in 2 contracts
Sources: Dealer Manager Agreement (Timco Aviation Services Inc), Dealer Manager Agreement (Timco Engine Center Inc)
Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The Company has prepared a preliminary prospectus, and agrees immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement in connection with the Underwriter that:
6.01offering of the Certificates. The Company will endeavor promptly transmit copies of the Prospectus Supplement to cause the Registration Statement Commission for filing pursuant to become effective and Rule 424 under the Securities Act.
(b) The Company will advise the Underwriter notify you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when of the effectiveness of any amendment to the Registration Statement has become effective and when any amendment thereto thereafter becomes effectiveStatement, (ii) of the transmittal to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement relating in any way to the offer and sale of the Certificates, (iv) of any request by the Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, information and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible timepurpose.
6.02. (c) The Company will not give you notice of its intention to file or prepare any amendment to the Registration Statement or make any amendment or supplement to the Prospectus Prospectus, whether by the filing of which documents pursuant to the Underwriter shall not have been advised previously Exchange Act, the Securities Act or otherwise, and will furnish you with copies of any such amendment or supplement or other documents proposed to which be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the Underwriter shall reasonably object in writing promptly after being so advisedcase may be.
6.03. On the Effective Date (d) The Company will deliver to you as many signed and conformed copies of the Registration Statement (as originally filed) and thereafter from time to time, for such period as of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Prospectus) as you may reasonably request. The Company will deliver furnish to the Underwriter and each Selected Dealer through whom Units may be soldyou, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) supplements and amendments thereto as they you may reasonably request. The Company consents request so long as you are required to the use of such deliver a Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with sales or solicitations of offers to purchase the offering or sale Certificates.
(e) If, during the period after the first date of the Units and public offering of the Certificates as in the written opinion of counsel for such period of time thereafter as the Underwriters (which counsel shall be reasonably acceptable to the Company, provided that Milbank, Tweed, Xxxxxx & XxXxxx LLP shall be acceptable to the Company) the Prospectus is required by law the Securities Act to be delivered in connection therewith. If during such period with sales of time the Certificates by an Underwriter or dealer any event shall occur that in the judgment or condition exist as a result of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or any other lawthe rules and regulations of the Commission thereunder, the Company, at its own expense, Company will forthwith promptly prepare and file with the Commission an appropriate such amendment or supplement supplement, whether by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements.
(f) The Company will endeavor to qualify the Certificates for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request and to maintain such qualification for as long as you shall reasonably request (provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or to subject itself to taxation as doing business in any jurisdiction in which it is not otherwise required to be so qualified) and to pay all expenses (including reasonable fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Certificates for investment under the laws of such jurisdictions as you may designate, as well as all reasonable expenses payable in connection with the review (if any) of the offering of the Certificates by the National Association of Securities Dealers, Inc. (including any filing fees and reasonable fees and expenses of counsel for the Underwriters in connection therewith).
(g) Whether or not any sale of such Certificates is consummated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing of any and all amendments to the Registration Statement and any and all amendments to the Prospectus; (ii) the filing of this Agreement; (iii) the preparation, issuance and delivery of the Certificates; (iv) the reasonable fees and disbursements of the Company's accountants and counsel, of the Trustee, the Subordination Agent, the Liquidity Provider, the Depositary, the Escrow Agent, the related Owner Trustees and the Indenture Trustee and their respective counsel, and of any registrar, paying agent and authenticating agent; (v) the qualification of the Certificates under securities laws in accordance with the provisions of Section 4(f), including filing fees and the reasonable fees and disbursements of counsel to the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; (vi) one half of all reasonable fees and expenses of counsel to the Underwriters; (vii) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and will furnish of the Prospectus and any amendments or supplements thereto, and the delivery by the Underwriters of the Prospectus and any amendments or supplements thereto in connection with solicitations or confirmations of sales of the Certificates; (viii) the preparation and delivery to the Underwriter Underwriters of copies of the Pass Through Agreement and the other Operative Documents, including all expenses incident to the performance of the Company's obligations under the Pass Through Agreement, Participation Agreements, Indentures, Leases and each Selected Dealer of the other agreements and instruments referred to in the Indentures and Participation Agreements; (ix) any fees charged by rating agencies for the rating of the Certificates; and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(h) The Company will not, during the period beginning on the date of this Agreement and continuing to the Closing Date, offer or sell, or enter into any agreement to sell, any equipment notes, pass through whom Units may be soldcertificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned or leased by the Company (or rights relating thereto), other than the Equipment Notes relating thereto, without chargethe prior written consent of the Underwriters.
(i) The Company, a reasonable number during the period when the Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of copies thereofthe Exchange Act.
(j) The Company will make generally available to its securities holders and you as soon as practicable (but in any event not later than 45 days) after the close of the period covered thereby, an earnings statement (which shall satisfy the provisions of Section 11(a) under the Securities Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's first full fiscal quarter after the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Us Airways Inc), Underwriting Agreement (Us Airways Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Securities contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Securities. As soon as the Company is advised thereof, the Company will advise you, and provide you copies of any written advice, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for an amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units Securities for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for any of such purposes purposes, and (iv) within will use its best efforts to prevent the period of time referred to in Section 6.03 below, of the happening issuance of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementsuch order, the Company will make every reasonable effort and, if issued, to obtain as soon as possible the withdrawal of such order at the earliest possible time.
6.02lifting thereof. The Company will not file any amendment has caused to be delivered to you copies of each Preliminary Prospectus, and the Company has consented and hereby consents to the Registration Statement or make any amendment or supplement use of such copies for the purposes permitted by the Act. The Company authorizes the Underwriter and dealers to use the Prospectus of which in connection with the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date sale of the Registration Statement and thereafter from time to time, Securities for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus thereof is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities applicable provisions of the Act or any other law, and the CompanyRules and Regulations. In case of the happening, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereof.any
Appears in 2 contracts
Sources: Underwriting Agreement (Casco International Inc), Underwriting Agreement (Casco International Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter you that:
6.01. (a) The Company will endeavor make no amendment or supplement (other than by an amendment or supplement in the form previously agreed to cause by the parties providing solely for a change in the interest rates or maturities offered in the Offered Securities, or for a change in the currency in which the Offered Securities are denominated, chosen from among currencies that have previously been described in the Prospectus (a "Pricing Supplement")) to the Registration Statement to become effective and will advise or the Underwriter promptly andProspectus, if requested whether by the Underwriter, will confirm such advice filing of documents incorporated by reference in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments whole or supplements to in part into the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdictionotherwise, or the initiation of make any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or form of final prospectus prior to the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply time it is first filed with the Securities Act or any other law. If at any time Commission pursuant to Rule 424(b) under the Commission Act, prior to having furnished each of you a reasonable opportunity to review the same and which shall issue any stop order suspending the effectiveness of the Registration Statement, not have been disapproved by you; the Company will make every reasonable effort to obtain advise each of you promptly of the withdrawal filing and effectiveness of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and filing of any amendment or supplement thereto(other than a Pricing Supplement) to the Prospectus (including the filing and effectiveness of any document incorporated by reference in whole or in part into the Registration Statement or the Prospectus), and of the institution by the Commission of any stop-order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop-order and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act any event occurs as a result of which the Registration Statement or Prospectus would include an 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, in your reasonable opinion or in the reasonable opinion of the Company, it is necessary at any time to amend or supplement the Registration Statement or Prospectus (including any document incorporated by reference in whole or part therein) to comply with the Act, the Company promptly will notify you, or you shall, as the case may be, suspend solicitation of offers to purchase Offered Securities and, if so notified by the Company, you shall forthwith suspend such solicitation and cease using the Prospectus; the Company will promptly prepare and file with the Commission an amendment or supplement to such Registration Statement or Prospectus (or to such document incorporated by reference therein) which will correct such statement or omission or effect such compliance and will supply such amended or supplemented Prospectus or document to each of you in such quantities as you may reasonably request. The Company consents to the use of ; and if such Prospectus (and of any amendment or supplement theretoor document, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (i) below in accordance connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement or document with the Commission or effectiveness of an amendment to the Registration Statement, resume your respective obligation to solicit offers to purchase Offered Securities hereunder.
(c) As soon as practicable, the Company will make generally available to its securityholders an earnings statement or statements that will satisfy the provisions of Section 11(a) of the Securities Act and with Rule 158 thereunder.
(d) The Company will furnish to each of you copies of all amendments of and supplements (other than Pricing Supplements, copies of which need only be furnished to the Agents involved in the sale of the Offered Securities to which such Pricing Supplements relates) to the Registration Statement and the Prospectus, as soon as available and in such quantities as you reasonably request.
(e) The Company will take such action as you may request in order to qualify the Offered Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as you may request; provided, however, that in no event shall the jurisdictions Company be obligated to subject itself to taxation or to qualify to do business in any jurisdiction where it is not now so subject or qualified or to take any action which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be soldwould subject it to service of process in suits, both in connection with other than those arising out of the offering or sale of the Units Offered Securities, in any jurisdiction where it is not now so subject.
(f) So long as any Offered Security is outstanding, the Company will furnish to each of you, as soon as practicable after the end of each fiscal year, a balance sheet and statement of income of the Company as at the end of and for such fiscal year in reasonable detail and reported on by independent public accountants. The Company will furnish to each of you as soon as practicable after the end of each quarterly fiscal period (except for the last quarterly fiscal period of time thereafter each fiscal year), a balance sheet and statement of income of each of the Company as at the end of such period and for the fiscal year to date, certified by either the Chief Financial Officer or Chief Accounting Officer of the Company. So long as the Company has active subsidiaries, such financial statements will be furnished on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated.
(g) The Company shall furnish to each of you as soon as practicable following the filing of any amendment or supplement (other than a Pricing Supplement) to the Registration Statement or Prospectus (including the filing of any document incorporated by reference in whole or in part into the Registration Statement or Prospectus), a certificate of (i) the Chairman of the Board, the President, any Executive Vice President or any Vice President and (ii) the Vice President and Treasurer, the Vice President and Controller or any other Vice President of the Company to the effect that, at the date of such certificate, neither the Registration Statement nor the Prospectus includes any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or Prospectus based upon written information furnished to the Company by any of you or any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein.
(h) The Company shall furnish to each of you (i) forthwith after the Company is required by law to be delivered in connection therewith. If during file the same with the Commission, copies of its annual reports and quarterly reports on Forms 10-K and 10-Q, respectively, its proxy statements and of any other information, documents and reports that the Company is required to file with the Commission pursuant to Section 13, 14 or Section 15(d) of the Securities Exchange Act of 1934 or with the New York Stock Exchange, Inc., or any other national securities exchange on which any security of the Company is listed and (ii) at the earliest time the Company makes the same available to others, copies of annual reports and other financial reports of the Company furnished or made available to the public generally.
(i) The Company shall furnish to each of you such period documents, certificates of time any event shall occur that in officers of the judgment Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus (including any amendments or supplements thereto), the Indenture, the Offered Securities, this Agreement, the Procedure and the performance by the Company and you of our respective obligations hereunder and thereunder as you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(j) The Company shall pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants, the cost of printing and delivery of the Registration Statement, the Prospectus (including all amendments and supplements thereto) and the Indentures, the costs of preparing, printing, packaging and delivering the Offered Securities, the fees and disbursements of the Trustees and the fees of any agency that rates the Offered Securities, the reasonable fees of your counsel, and will reimburse you from time to time for all reasonable out-of-pocket expenses incurred by you, including in connection with the opinion offering and sale of counsel the Offered Securities and the qualification of the Offered Securities for sale and determination of eligibility for investment of the UnderwriterOffered Securities under the securities or Blue Sky laws of such jurisdictions as you designate and any advertising expenses connected with the offering and sale of Offered Securities.
(k) Each acceptance by the Company of an offer to purchase Offered Securities and each delivery of Offered Securities in any sale made to, requires or pursuant to an offer solicited by, you will be deemed to be an affirmation to any Agent that solicited such offer or purchased such Offered Securities that the representations and warranties of the Company contained in Sections 2(a) through 2(e) are true and correct at the time of such acceptance or delivery, as though made at and as of such time, and a representation and warranty to any Agent that solicited such offer or purchased such Offered Securities that neither the Registration Statement nor the Prospectus includes any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) in order omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or if it omissions in the Registration Statement or the Prospectus based upon written information furnished to the Company by any of you or any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein.
(l) Each time that the Registration Statement or the Prospectus (including any portion of any document incorporated by reference in whole or part into either), is amended or supplemented (other than by a Pricing Supplement), the Company will deliver or cause to be delivered forthwith to each of you a certificate of the officers of the Company as specified in Section 4(g), dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form reasonably satisfactory to you, to the effect that the statements contained in the certificate referred to in Section 5(c)(ii) that was last furnished to you (either pursuant to Section 5(c)(ii) or this Section 4(l)) are true and correct at the time of the effectiveness of such amendment or the filing of such supplement as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(c)(ii) dated the effective date of such amendment or the date of filing of such supplement.
(m) Each time that the Registration Statement or the Prospectus, including any portion of any document incorporated by reference in whole or part into either, is amended or supplemented (other than by a Pricing Supplement), and except for an amendment or supplement occasioned by the incorporation by reference of proxy materials of the Company or reports of the Company on Form 10-K, Form 10-Q or Form 8-K, in which case the written opinion furnished by the Company referred to hereafter shall be that of the General Counsel or Assistant General Counsel of the Company), the Company shall furnish or cause to be furnished forthwith to each of you a written opinion of Piper & Marbury L.L.P., or other counsel for the Company acceptable to the Agents, dated the date of the effectiveness of such amendment or the date of filing of such supplement or the filing of such document incorporated by reference into the Registration Statement or the Prospectus, in form satisfactory to you, relating to the Registration Statement and the Prospectus.
(n) Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information, whether by incorporation by reference in whole or in part or otherwise, the Company shall cause KPMG Peat Marwick L.L.P., or other independent certified public accountants of national standing, forthwith to furnish to each of you a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form satisfactory to you, of the same tenor as the letter referred to in Section 5(d) with such changes as may be necessary to amend reflect the amended or supplemental financial information included in the Registration Statement and the Prospectus and the other financial information of the Company available within five days of the date of such letter; provided, however, that such accountants need only furnish you a letter in compliance with SAS 71, as appropriately modified, where such amendment or supplement or document incorporated by reference only sets forth unaudited quarterly financial information contained in the Prospectus Company's Quarterly Report on Form 10-Q.
(o) Between the date of any Terms Agreement and the settlement date with respect to comply with the Offered Securities Act covered thereby, the Company will not, without the prior consent of each of you that is a party to such Terms Agreement, offer or sell, or enter into any other lawagreement to sell, any debt securities of the Company, at other than (i) borrowings under the Company's revolving credit agreements and lines of credit and (ii) issuances of the Company's commercial paper.
(p) The Company shall offer to any person who has agreed to purchase Offered Securities as a result of an offer to purchase solicited by any of you the right to refuse to purchase and pay for such Offered Securities if, on the related settlement date fixed pursuant to the Procedure, (i) the condition set forth in Section 5(a) hereof shall not be satisfied, (ii) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its own expenseratings of any debt securities of the Company or (iii) if any of the events set forth in clause (ii) or clause (iii) of the second sentence of Section 9 hereof shall have occurred (it being understood that, will forthwith prepare and file for purposes of this paragraph (p), the judgment of such person shall be substituted for the judgment of the Agent with respect to the Commission an appropriate amendment or supplement theretomatters referred to in clause (ii) of the second sentence of Section 9 hereof, and will furnish that the Agent shall have no duty or obligation to the Underwriter exercise its judgment on behalf of such person). This paragraph (p) shall not affect any other right of any person who has agreed to purchase Offered Securities to refuse to purchase and each Selected Dealer through whom Units may be sold, without charge, a reasonable number pay for such Offered Securities that arises under any other provision of copies thereofthis Agreement.
Appears in 2 contracts
Sources: Distribution Agreement (PHH Corp), Distribution Agreement (PHH Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter Underwriters that:
6.01. The (a) If the Registration Statement has not yet been declared effective the Company will endeavor use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will advise provide evidence satisfactory to you of such timely filing. If the Underwriter promptly andCompany elects to rely on Rule 434, if requested by the Underwriter, Company will confirm such advice in writing prepare and file a term sheet that complies with the requirements of Rule 434.
(i) when the Registration Statement has and any amendments thereto become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments any amendment of or supplements supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the suspension of qualification of the Units for offering or sale in any state or jurisdictioninitiation, or the initiation threatening, of any proceeding for such purposes proceedings therefor and (ivv) within the period of time referred to in Section 6.03 below, of the happening receipt of any event that makes comments from the Commission. If the Commission shall propose or enter a stop order at any statement made in time, the Company will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change supplemented would, in the Registration Statement judgment of the Underwriters or the Prospectus (as then amended Company, include an untrue statement of a material fact or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or any other lawthe Regulations, the Company, at its own expense, Company will forthwith notify you promptly and prepare and file with the Commission an appropriate amendment or supplement thereto(in form and substance reasonably satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you three signed copies of the Registration Statement, as initially filed with the Commission, and all amendments thereto (including exhibits) and will maintain in the Company's files manually signed copies of such documents for at least five years from the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process. The Company will promptly advise you of the receipt by the Company of any notification with respect to suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and will use every reasonable effort to obtain the withdrawal of any order of suspension as soon as possible.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earning statement (in form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the effective date of the Registration Statement, (i) the Company will not, without the prior written consent of Bear, Xxxxxxx & Co. Inc., issue, sell, offer or contract to sell, grant any option, warrant or other right to purchase or otherwise sell or dispose of (or announce any offer of sale, contract of sale, sale, grant of any option, warrant or other right to purchase or other sale or disposition of), directly or indirectly, any shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for shares of Common Stock), except for the issuance by the Company of shares of Common Stock pursuant to the 1998 Employee Stock Purchase Plan or pursuant to the exercise of options outstanding under the 1998 Stock Incentive Plan at the time of the closing of the sale of the Firm Shares on the Closing Date (provided that the Company shall only so issue shares during such 180 days to persons who are not, at the time of the closing of the sale of the Firm Shares on the Closing Date, officers or directors of the Company or stockholders having beneficial ownership of a least 1% of the outstanding Common Stock of the Company), and (ii) the Company will obtain the undertaking of each of its officers and directors and all of its stockholders having beneficial ownership at least 1% of the outstanding Common Stock of the Company, as of the time of the closing of the sale of the Firm Shares hereunder on the Closing Date, not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you and, upon request, to each of the Underwriter other Underwriters (i) copies of any reports or other communications that the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all reports, financial statements and each Selected Dealer through whom Units proxy or information statements filed by the Company with the Commission or any national securities exchange or automated quotation system, and (iii) such other information as you may reasonably request regarding the Company, subject to the provisions of any written agreement that, in the opinion of outside counsel to the Company, prohibit the Company from furnishing such information under any circumstances including, without limitation, an agreement by you to be subject to the provisions of such written agreement.
(h) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be included in the National Association of Securities Dealers Automated Quotation National Market System.
(j) The Company will file with the Commission in its periodic reports pursuant to Section 13 or 15 of the Exchange Act such information as may be soldrequired pursuant to Rule 463 of the Regulations.
(k) The Company, without chargeduring the period when the Prospectus is required to be delivered under the Act or the Exchange Act, a reasonable number will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of copies thereofthe Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
Appears in 2 contracts
Sources: Underwriting Agreement (Collateral Therapeutics Inc), Underwriting Agreement (Collateral Therapeutics Inc)
Covenants of the Company. The Company hereby covenants and agrees with the Underwriter thatas follows:
6.01. The (a) If the Registration Statement has not already been declared effective by the SEC, the Company will endeavor use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective and as promptly as possible; the Company will advise notify the Underwriter promptly and, if requested by of the Underwriter, will confirm such advice in writing (i) time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission SEC for any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in the opinion of the Company and the Underwriter, may be necessary or advisable in connection with the distribution of the Units by the Underwriter; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriter promptly after it shall receive notice or for additional information, (iii) obtain knowledge thereof of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Units for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and the Company will make every reasonable effort promptly use its best efforts to prevent the issuance of any stop order or to obtain the its withdrawal of if such a stop order at the earliest possible timeshould be issued.
6.02. The Company will not file any amendment (c) Within the time during which a prospectus relating to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus Units is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the Securities Act, the Company will deliver to comply as far as it is able with all requirements imposed upon it by the Underwriter and each Selected Dealer through whom Units may be sold, without chargeSecurities Act, as many copies now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Units as contemplated by the provisions hereof and the Prospectus. If, during such period, any event occurs as a result of which the Prospectus (and would include an untrue statement of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were madethen existing, not misleading, or if if, during such period, it is necessary to amend the Registration Statement or supplement the Prospectus to comply with the Securities Act or any other lawAct, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the qualification of the Units for offering and sale under the securities laws of such jurisdictions as the Underwriter may designate and to continue such qualifications in effect for so long as may be required for purposes of the distribution of the Units; provided, at however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Units shall have been qualified as herein provided, the Company will use its own expense, will forthwith prepare best efforts to make and file with such statements and reports in each year as are or may be reasonably required by the Commission an appropriate amendment or supplement thereto, and laws of such jurisdiction.
(e) The Company will furnish to the Underwriter copies of the Registration Statement (two of which will be signed and will include all exhibits), each Selected Dealer through whom Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriter may from time to time reasonably request.
(f) For a period of five years from the Effective Date, the Company will furnish directly to the Underwriter as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Underwriter with the following:
(i) One copy of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, The Nasdaq Stock Market, the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Underwriter may reasonably and specifically request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of two (2) years from the Effective Date, furnish directly to the Underwriter quarterly profit and loss statements, reports of the Company's cash flow and statements of application of the proceeds of the offering of the Units by the Company in such reasonable detail as the Underwriter may request.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)-month period beginning after the Effective Date of the Registration Statement.
(i) After completion of the offering of the Units, the Company will make all filings and take all actions required to maintain the quotation or listing of the Units on The Nasdaq SmallCap Market, The Nasdaq National Market or any national stock exchange. The Company shall make all filings and take all actions required to have the Common Stock and the Redeemable Warrants constituting the Units to be quoted on the same automated quotations system or listed on the same national stock exchange on which the Units are being quoted or listed, which quotation or listing shall be effective eighteen (18) months from the Effective Date, when the Units become separable. After the Units become separable, the Company will make all filings and take all actions required to maintain the quotation or listing of the Common Stock and the Redeemable Warrants on such quotations system or national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Units substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(k) For a period of six months after the Second Closing Date, the Company will not, without the prior written consent of the Underwriter, directly or indirectly, offer to sell, contract to sell, sell, pledge, hypothecate, transfer or otherwise dispose of or grant any rights with respect to (collectively, a "Disposition") of any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock, except that the Company may take the following actions:
(i) sell Units pursuant to this Agreement;
(ii) grant options under the Company's Stock Plans in the ordinary course, but only if the per share exercise price or conversion price of any such options is equal to or greater than the market price of the Common Stock on the date of grant;
(iii) issue shares of Common Stock upon the exercise of options granted under the Stock Plans and upon the exercise of warrants outstanding on the date of this Agreement; and
(iv) issue the Company's Securities in connection with the Company's acquisition of any business entity or property when approved by the Company's board of directors or shareholders, if such approval is required.
(l) For a period of six months from the Effective Date, the Company will not, without the prior written consent of the Underwriter, file a registration statement with the SEC or any state securities or "Blue Sky" law authority relating to any of the Company's Securities, whether such shares are to be offered and sold by the Company or by its shareholders, except for a Registration Statement on Form S-4 or Form S-8 (or any successor or replacement forms of such registration statements) relating only to shares of Common Stock subject to options granted under the Stock Plans with respect to a Form S-8 or any successor or replacement form, or Securities of the Company issued in connection with an acquisition with respect to a Form S-4 or any successor or replacement form.
(m) The Company will not take, and will use its best efforts to cause each of its officers and directors not to 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 any security of the Company to facilitate the sale or resale of the Units.
(n) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Units by the Underwriter if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
(o) The Company will cause the Common Stock, the Redeemable Warrants and the Units to be registered under the Exchange Act, which registrations shall be effective concurrently with the effectiveness of the Registration Statement.
(p) The Company hereby grants to the Underwriter the right to nominate a representative to serve on the Company's Board of Directors during the period of three (3) years following the Effective Date of the Registration Statement, and the Company shall use its best efforts to secure the election of such representative to the Company's Board of Directors; provided, that any compensation received by such representative or the Underwriter in connection with the representative serving on the Company's Board of Directors shall not exceed any compensation received by any other member of the Company's Board of Directors.
(q) Unless the Company's Common Stock and Redeemable Warrants are listed on The Nasdaq National Market or other suitable secondary trading exemptions are available, or if for any reason state Blue Sky or securities laws do not apply to secondary trading of the Common Stock and Redeemable Warrants, the Company will seek to become listed in Standard & Poors or another recognized securities manual as soon as practicable after the Effective Date and shall pay all filing fees in connection therewith, for the purpose of facilitating secondary trading in the Common Stock and Redeemable Warrants; and the Company shall also agree to make appropriate filings to qualify the Common Stock and Redeemable Warrants for secondary trading in states in which such filings are necessary to cause the Common Stock and Redeemable Warrants to be qualified, provided that such qualification may be sold, obtained without charge, a reasonable number of copies thereofcausing the Company extraordinary cost or hardship.
Appears in 2 contracts
Sources: Underwriting Agreement (Medicalcv Inc), Underwriting Agreement (Medicalcv Inc)
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) The Company will endeavor to cause notify the Registration Statement to become effective Representatives immediately and will advise confirm the Underwriter promptly and, if requested by the Underwriter, will confirm such advice notice in writing (i) when of the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) receipt of any request by the Commission for amendments any amendment or supplements supplement to the Registration Statement or the Prospectus or any amendment or supplement thereto or for additional information, and (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threatened initiation of any proceedings for that purpose or of the suspension or threatened suspension of the qualification of the Units Bonds for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order shall at any time be issued, to obtain the withdrawal of such order lifting thereof at the earliest possible timemoment.
6.02. (b) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424 and including documents deemed to be incorporated by reference into the Prospectus) without first having furnished the Representatives with a copy of which the Underwriter shall not have been advised previously proposed form thereof and given the Representatives a reasonable opportunity to review and comment respecting the same and having given reasonable consideration to any comments or to which objections made by the Underwriter shall reasonably object in writing promptly after being so advisedRepresentatives.
6.03. On (c) The Company will deliver to each of the Effective Date Representatives, as soon as available, one signed copy of the Registration Statement as originally filed and thereafter from time of each amendment thereto, including, in each case, documents incorporated by reference into the Registration Statement and one set of exhibits thereto (other than exhibits incorporated by reference which will be furnished upon specific request), and will also deliver to time, the Representatives a reasonable number of conformed copies of the Registration Statement as originally filed and of each amendment and post-effective amendment thereto including such incorporated documents (without exhibits) for such period as in each of the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Underwriters.
(d) The Company will deliver to each Underwriter from time to time during the Underwriter and each Selected Dealer through whom Units may period when a prospectus is required to be sold, without charge, as many delivered under the Act such number of copies of the Prospectus (as amended or supplemented and of any amendment or supplement theretoincluding incorporated documents) as they the Representatives may reasonably request. The Company consents to request for the use purposes contemplated by the Act or the Regulations; provided, however, that the delivery of such copies of the Prospectus (as amended or supplemented and including incorporated documents) more than nine months after the date of any amendment the Underwriting Agreement shall be at the expense of the Underwriter requesting such delivery.
(e) During the period when a prospectus is required to be delivered under the Act, the Company will comply so far as it is able, and at its own expense (for a period not to exceed nine months), with all requirements imposed upon it by the Act, and by Sections 13 and 14 of the 1934 Act, as now or supplement thereto) hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Bonds during such period in accordance with the provisions hereof and of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. Prospectus.
(f) If during such period of time any event shall occur that in the judgment as a result of the Companywhich it is necessary, or in the opinion of counsel for the UnderwriterCompany and of Underwriters' counsel, requires that a material fact be stated in to amend or supplement the Prospectus (as then amended or supplemented) in order to make the statements therein, Prospectus not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, Company will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be soldUnderwriters, without chargeexpense to them except as otherwise provided in subsection (d) of this Section 4, a reasonable number of copies of an amendment or amendments or a supplement or supplements to the Prospectus (in the form referred to in subsection (b) of this Section 4) which will amend or supplement the Prospectus so that as amended or supplemented it 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 not misleading, or so that the Prospectus will comply with law. For the purposes of this subsection, the Company will furnish such information as the Representatives may from time to time reasonably request.
(g) The Company will endeavor in good faith, in cooperation with the Underwriters, to qualify the Bonds for offering and sale under the applicable securities laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to file any general consent to service or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified. In each jurisdiction where any of the Bonds shall be qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonably required by the laws thereof.
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 75 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11 (a) of the Act and the Regulations thereunder (including, at the option of the Company, Rule 158), which need not be certified by independent public accountants unless required by the Act or the Regulations), covering a twelve-month period beginning on the first day of the calendar quarter following the Time of Delivery.
(i) The Company agrees that it will not publicly offer or sell any intermediate or long-term debt between the date of the Underwriting Agreement and Time of Delivery without the prior written consent of the Representatives.
Appears in 2 contracts
Sources: Underwriting Agreement (Northern Illinois Gas Co /Il/ /New/), Underwriting Agreement (Northern Illinois Gas Co /Il/ /New/)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 6(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may XxXxxxxx & Company, Inc. July , 2006 hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers selected dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation. XxXxxxxx & Company, Inc. July , 2006
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 2 contracts
Sources: Underwriting and Advisory Agreement (Hampton Roads Bankshares Inc), Underwriting and Advisory Agreement (Hampton Roads Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and provide you copies of any written advice, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for an amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement theretopurposes, and will furnish use its best efforts to prevent the Underwriter and each Selected Dealer through whom Units may be soldissuance of any such order, without chargeand, a reasonable number of copies if issued, to obtain as soon as possible the lifting thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (All Communications Corp/Nj), Underwriting Agreement (Flemington Pharmaceutical Corp)
Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriter thatUnderwriters as follows:
6.01. The (a) If the Registration Statement has not already been declared effective by the SEC, the Company will endeavor use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective and as promptly as possible; the Company will advise notify the Underwriter Representative promptly and, if requested by of the Underwriter, will confirm such advice in writing (i) time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission SEC for any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus containing the information omitted therefrom pursuant to such Rule 430A with the SEC within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the SEC, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or advisable in connection with the distribution of the Shares by the Underwriters; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which the Representative shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Representative, promptly after it shall receive notice or for additional informationobtain knowledge thereof, (iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will make every reasonable effort promptly use its best efforts to prevent the issuance of any stop order or to obtain the its withdrawal of if such a stop order at the earliest possible timeshould be issued.
6.02. The Company will not file any amendment (c) Within the time during which a prospectus relating to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the Securities Act, the Company will deliver to comply as far as it is able with all requirements imposed upon it by the Underwriter and each Selected Dealer through whom Units may be sold, without chargeSecurities Act, as many copies now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during such period, any event occurs as a result of which the Prospectus (and would include an untrue statement of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were madethen existing, not misleading, or if if, during such period, it is necessary to amend the Registration Statement or supplement the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to arrange for the qualification of the Shares for offering and sale under the securities laws of such jurisdictions as the Representative may designate and to continue such qualifications in effect for so long as may be required for purposes of the distribution of the Shares; provided, however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to the service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Shares shall have been qualified as herein provided, the Company will make and file such statements and reports in each year as are or may be reasonably required by the laws of such jurisdiction.
(e) The Company will furnish to the Underwriters copies of the Registration Statement (one of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative may from time to time reasonably request.
(f) For a period of five years from the Effective Date, the Company will furnish directly to the Representative as soon as the same shall be sent to its shareholders generally copies of all annual or interim shareholder reports of the Company and will, for the same period, also furnish the Representative with the following:
(i) Two copies of any report, application or document (other than exhibits, which, however, will be furnished on your request) filed by the Company with the SEC, Nasdaq, the NASD or any securities exchange;
(ii) As soon as the same shall be sent to shareholders generally, copies of each communication sent to shareholders; and
(iii) From time to time, such other information concerning the Company as the Representative may reasonably request. The Company will, for a period of five (5) years from the Effective Date, and as soon as practicable following the close of each applicable period, furnish directly to the Representative detailed quarterly and annual profit and loss statements, reports of the Company's cash flow, other financial statements, and statements of application of the proceeds of the offering of the Shares by the Company.
(g) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the fifteen (15) months after the end of the Company's current fiscal quarter, an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and covering a twelve (12)- month period beginning after the Effective Date of the Registration Statement.
(h) If required by the Securities Act or any other lawthe Rules and Regulations thereunder, the Company, at its own expense, Company will forthwith prepare and file with the Commission an appropriate amendment SEC reports on Form SR in accordance with the Securities Act and the Rules and Regulations.
(i) After completion of the offering of the Shares, the Company will make all filings required to maintain the quotation of the Common Stock on The Nasdaq SmallCap Market or supplement theretoany national stock exchange.
(j) The Company will apply the net proceeds from the sale of the Shares being sold by it substantially in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(k) During the Lock-Up Period, and except for the sale of Shares by the Company pursuant to this Agreement, the Company will not, without the prior written consent of the Representative, effect the Disposition of, directly or indirectly, any Securities including, without limitation, any Securities that are convertible into or exchangeable or exercisable for Common Stock, and shall not accelerate the exercisability of any Securities that are convertible into or exchangeable or exercisable for Common Stock.
(l) The Company will not take, and will furnish use its best efforts to cause each of its officers and directors not to 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 any security of the Company to facilitate the sale or resale of the Shares.
(m) The Company will inform the Florida Department of Banking and Finance at any time prior to the Underwriter and each Selected Dealer through whom Units may consummation of the distribution of the Shares by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information shall be sold, without charge, provided within 90 days after the commencement thereof or after a reasonable number of copies thereofchange occurs with respect to previously reported information.
Appears in 2 contracts
Sources: Underwriting Agreement (Eco Soil Systems Inc), Underwriting Agreement (Eco Soil Systems Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 6(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the Underwriter and by selected dealers to whom Units may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers selected dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Units for offer and sale by you and by selected dealers through whom Units may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Units, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation, including Rule 158 under the Securities Act.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(i) The Company will use its best efforts to have the Series B Preferred Stock and Warrants qualified for listing on the NASDAQ Global Market, subject to official notice of issuance of the Series B Preferred Stock and Warrants being sold by the Company, immediately after the Closing Date or as soon as practicable thereafter and, upon such issuance, the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Global Market issuers.
Appears in 2 contracts
Sources: Underwriting and Advisory Agreement (Waccamaw Bankshares Inc), Underwriting and Advisory Agreement (Waccamaw Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Shares is required to be delivered under the Act, the Company (i) will comply with all requirements imposed upon it by the Act and the Exchange Act and the respective rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of sales of or dealings in the Shares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (ii) will not file with the Commission the Prospectus or the amendment referred to in the third sentence of Section 2(a) hereof, any amendment or supplement to such prospectus or any amendment to the Registration Statement or any Rule 462(b) Registration Statement of which the Underwriter shall not previously have been advised and furnished with a copy for a reasonable period of time prior to the proposed filing and as to which filing the Underwriter shall not have given its consent; provided, that the foregoing provision of this clause (ii) does not prohibit the Company from making filings with the Commission of statements and reports that it reasonably believes are required to be made under the Exchange Act. The Company will endeavor prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Underwriter or counsel for the Underwriter, any amendments to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriter, and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective by the Commission as promptly as possible. The Company will advise the Underwriter, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus or for additional informationany amendment or supplement thereto has been filed and will provide evidence satisfactory to the Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after receiving notice or obtaining knowledge thereof, of (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering any Rule 462(b) Registration Statement or sale in any state post-effective amendment thereto or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of order directed at any event that makes any statement made document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto or any order preventing or suspending the use of any Preliminary Prospectus, or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (iii) the institution, threatening or contemplation of any proceeding for any such purpose or (iv) any request made by the Commission for amending the Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing any Preliminary Prospectus or the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(c) If, at any time prior to the final date when a prospectus relating to the Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented) , would include any untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement supplement, the Prospectus to comply with the Securities Act, the Exchange Act or any other lawthe respective rules or regulations of the Commission thereunder, the CompanyCompany will promptly notify the Underwriter thereof and, at its own expensesubject to Section 6(a) hereof, will forthwith prepare and file with the Commission Commission, at the Company's expense, an appropriate amendment to the Registration Statement or an amendment or supplement theretoto the Prospectus that corrects such statement or omission or effects such compliance.
(d) The Company will, and will furnish without charge, provide (i) to the Underwriter and to counsel for the Underwriter a conformed copy of the registration statement originally filed with respect to the Shares and each Selected Dealer through whom Units amendment thereto (in each case including exhibits thereto) or any Rule 462(b) Registration Statement and (ii) as soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus relating to the Shares is required by the Act to be delivered in connection with sales by the Underwriter or a dealer, as many copies of the Prospectus and any amendment or supplement thereto as the Underwriter may reasonably request.
(e) The Company, as soon as practicable when required, will make generally available to its securityholders and to the Underwriter a consolidated earnings statement of the Company and its Subsidiaries that satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(f) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be soldexpected to cause or result in, without chargeor which will constitute, a reasonable number stabilization or manipulation of copies the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(g) The Company will use its best efforts to cause its Common Stock to continue to be listed on the AMEX, or in lieu thereof, on the New York Stock Exchange or the NASDAQ National Market System.
Appears in 2 contracts
Sources: Underwriting Agreement (Uti Energy Corp), Underwriting Agreement (Uti Energy Corp)
Covenants of the Company. The Company covenants and agrees with that: ------------------------
(a) It will promptly deliver to the Underwriter that:
6.01. The Company will endeavor to cause Underwriters a signed copy of the Registration Statement as originally filed or, to become effective the extent a signed copy is not available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Prospectus as of such date as the Underwriters may reasonably request.
(c) It will cause the Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriter promptly and, if requested by Underwriters of the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) issuance of any request by stop order under the Commission for amendments or supplements Securities Act with respect to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission institution of any stop order suspending the effectiveness proceedings therefor of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, which the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not file any amendment to the Registration Statement or make any amendment or supplement to exceeding nine months) after the Prospectus of which has been filed with the Underwriter shall not have been advised previously or Commission pursuant to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period Rule 424 as in the written opinion of counsel Counsel for the Underwriter Underwriters a Prospectus prospectus covering the Securities is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, any event relating to or affecting the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies or of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered Company shall be advised in writing by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event Underwriters shall occur that in the judgment Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to the Underwriters at the Company's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus or (ii) making an appropriate filing pursuant to Section 13 of the Exchange Act, which will supplement or in amend the opinion Prospectus so that, as supplemented or amended, it will not contain any untrue statement of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing any such amendment or if it supplement. In case any Underwriter is necessary required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus to comply is filed with the Securities Act or any other lawCommission pursuant to Rule 424, the Company, at its own expenseupon the Underwriter's request, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be soldUnderwriter, without chargeat the expense of the Underwriters, a reasonable number quantity of copies thereofa supplemental prospectus or supplements to the Prospectus complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security holders, as soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months beginning not earlier than the first day of the month next succeeding the month in which occurred the effective date of the Registration Statement as defined in Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the blue-sky laws of such jurisdictions as the Underwriters may designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, (ii) the issuance and delivery of the Securities as provided in Section 5 hereof (including, without limitation, all trustee and rating agency fees), (iii) the qualification of the Securities under blue-sky laws (including counsel fees not to exceed $7,500 and reasonable disbursements of counsel), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 6(d) hereof, of the Prospectus. The Company shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if this Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 10 hereof, the Company will reimburse the Underwriters for the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $5,000, incurred in contemplation of the performance of this Agreement. The Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(h) During the period from the date of this Agreement to the Closing Date, the Company will not, without the prior written consent of the Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, in the market in which the Securities are being offered and sold, any securities of the Company or any of its subsidiaries which are of the same class as the Securities.
Appears in 2 contracts
Sources: Underwriting Agreement (Txu Capital Iv), Underwriting Agreement (Txu Electric Capital Viii)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 6(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any XxXxxxxx & Company, Inc. , 2010 time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03. (d) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers selected dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(e) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject. XxXxxxxx & Company, Inc. , 2010
(f) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation, including Rule 158 under the Securities Act.
(g) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(h) The Company will use its best efforts to have the Shares qualified for listing on the NASDAQ Global Market, subject to official notice of issuance of the Shares being sold by the Company, immediately after the Closing Date or as soon as practicable thereafter and, upon such issuance, the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Global Market issuers.
Appears in 2 contracts
Sources: Underwriting and Advisory Agreement (Waccamaw Bankshares Inc), Underwriting and Advisory Agreement (Waccamaw Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter you that:
6.01. (a) The Company will endeavor make no amendment or supplement (other than by an amendment or supplement in the form previously agreed to cause by the parties providing solely for a change in the interest rates or maturities offered in the Offered Securities, or for a change in the currency in which the Offered Securities are denominated, chosen from among currencies that have previously been described in the Prospectus (a "Pricing Supplement")) to the Registration Statement to become effective and will advise or the Underwriter promptly andProspectus, if requested whether by the Underwriter, will confirm such advice filing of documents incorporated by reference in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments whole or supplements to in part into the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdictionotherwise, or the initiation of make any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or form of final prospectus prior to the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply time it is first filed with the Securities Act or any other law. If at any time Commission pursuant to Rule 424(b) under the Commission Act, prior to having furnished each of you a reasonable opportunity to review the same and which shall issue any stop order suspending the effectiveness of the Registration Statement, not have been disapproved by you; the Company will make every reasonable effort to obtain advise each of you promptly of the withdrawal filing and effectiveness of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and filing of any amendment or supplement thereto(other than a Pricing Supplement) to the Prospectus (including the filing and effectiveness of any document incorporated by reference in whole or in part into the Registration Statement or the Prospectus), and of the institution by the Commission of any stop-order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop-order and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act any event occurs as a result of which the Registration Statement or Prospectus would include an 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, in your reasonable opinion or in the reasonable opinion of the Company, it is necessary at any time to amend or supplement the Registration Statement or Prospectus (including any document incorporated by reference in whole or part therein) to comply with the Act, the Company promptly will notify you, or you shall, as the case may be, suspend solicitation of offers to purchase Offered Securities and, if so notified by the Company, you shall forthwith suspend such solicitation and cease using the Prospectus; the Company will promptly prepare and file with the Commission an amendment or supplement to such Registration Statement or Prospectus (or to such document incorporated by reference therein) which will correct such statement or omission or effect such compliance and will supply such amended or supplemented Prospectus or document to each of you in such quantities as you may reasonably request. The Company consents to the use of ; and if such Prospectus (and of any amendment or supplement theretoor document, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (i) below in accordance connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement or document with the Commission or effectiveness of an amendment to the Registration Statement, resume your respective obligation to solicit offers to purchase Offered Securities hereunder.
(c) As soon as practicable, the Company will make generally available to its security holders an earnings statement or statements that will satisfy the provisions of Section 11(a) of the Securities Act and with Rule 158 thereunder.
(d) The Company will furnish to each of you copies of all amendments of and supplements (other than Pricing Supplements, copies of which need only be furnished to the Agents involved in the sale of the Offered Securities to which such Pricing Supplements relates) to the Registration Statement and the Prospectus, as soon as available and in such quantities as you reasonably request.
(e) The Company will take such action as you may request in order to qualify the Offered Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as you may request; provided, however, that in no event shall the jurisdictions Company be obligated to subject itself to taxation or to qualify to do business in any jurisdiction where it is not now so subject or qualified or to take any action which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be soldwould subject it to service of process in suits, both in connection with other than those arising out of the offering or sale of the Units Offered Securities, in any jurisdiction where it is not now so subject.
(f) So long as any Offered Security is outstanding, the Company will furnish to each of you, as soon as practicable after the end of each fiscal year, a balance sheet and statement of income of the Company as at the end of and for such fiscal year in reasonable detail and reported on by independent public accountants. The Company will furnish to each of you as soon as practicable after the end of each quarterly fiscal period (except for the last quarterly fiscal period of time thereafter each fiscal year), a balance sheet and statement of income of each of the Company as at the end of such period and for the fiscal year to date, certified by either the Chief Financial Officer or Chief Accounting Officer of the Company. So long as the Company has active subsidiaries, such financial statements will be furnished on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated.
(g) The Company shall furnish to each of you as soon as practicable following the filing of any amendment or supplement (other than a Pricing Supplement) to the Registration Statement or Prospectus (including the filing of any document incorporated by reference in whole or in part into the Registration Statement or Prospectus), a certificate of (i) the Chairman of the Board, the President, any Executive Vice President or any Vice President and (ii) the Vice President and Treasurer, the Vice President and Controller or any other Vice President of the Company to the effect that, at the date of such certificate, neither the Registration Statement nor the Prospectus includes any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or Prospectus based upon written information furnished to the Company by any of you or any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein.
(h) The Company shall furnish to each of you (i) forthwith after the Company is required by law to be delivered in connection therewith. If during file the same with the Commission, copies of its annual reports and quarterly reports on Forms 10-K and 10-Q, respectively, its proxy statements and of any other information, documents and reports that the Company is required to file with the Commission pursuant to Section 13, 14 or Section 15(d) of the Securities Exchange Act of 1934 or with the New York Stock Exchange, Inc., or any other national securities exchange on which any security of the Company is listed and (ii) at the earliest time the Company makes the same available to others, copies of annual reports and other financial reports of the Company furnished or made available to the public generally.
(i) The Company shall furnish to each of you such period documents, certificates of time any event shall occur that in officers of the judgment Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus (including any amendments or supplements thereto), the Indenture, the Offered Securities, this Agreement, the Procedure and the performance by the Company and you of our respective obligations hereunder and thereunder as you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(j) The Company shall pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its Accountants, the cost of printing and delivery of the Registration Statement, the Prospectus (including all amendments and supplements thereto) and the Indentures, the costs of preparing, printing, packaging and delivering the Offered Securities, the fees and disbursements of the Trustees and the fees of any agency that rates the Offered Securities, the reasonable fees of your counsel, and will reimburse you from time to time for all reasonable out-of-pocket expenses incurred by you, including in connection with the opinion offering and sale of counsel the Offered Securities and the qualification of the Offered Securities for sale and determination of eligibility for investment of the UnderwriterOffered Securities under the securities or Blue Sky laws of such jurisdictions as you designate and any advertising expenses connected with the offering and sale of Offered Securities.
(k) Each acceptance by the Company of an offer to purchase Offered Securities and each delivery of Offered Securities in any sale made to, requires or pursuant to an offer solicited by, you will be deemed to be an affirmation to any Agent that solicited such offer or purchased such Offered Securities that the representations and warranties of the Company contained in Sections 2(a) through 2(e) are true and correct at the time of such acceptance or delivery, as though made at and as of such time, and a representation and warranty to any Agent that solicited such offer or purchased such Offered Securities that neither the Registration Statement nor the Prospectus includes any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) in order omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or if it omissions in the Registration Statement or the Prospectus based upon written information furnished to the Company by any of you or any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein.
(l) Each time that the Registration Statement or the Prospectus (including any portion of any document incorporated by reference in whole or part into either), is amended or supplemented (other than by a Pricing Supplement), the Company will deliver or cause to be delivered forthwith to each of you a certificate of the officers of the Company as specified in Section 4(g), dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form reasonably satisfactory to you, to the effect that the statements contained in the certificate referred to in Section 5(c)(ii) that was last furnished to you (either pursuant to Section 5(c)(ii) or this Section 4(l)) are true and correct at the time of the effectiveness of such amendment or the filing of such supplement as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(c)(ii) dated the effective date of such amendment or the date of filing of such supplement.
(m) Each time that the Registration Statement or the Prospectus, including any portion of any document incorporated by reference in whole or part into either, is amended or supplemented (other than by a Pricing Supplement), and except for an amendment or supplement occasioned by the incorporation by reference of proxy materials of the Company or reports of the Company on Form 10-K, Form 10-Q or Form 8-K (in which case the written opinion furnished by the Company referred to hereafter shall be that of the General Counsel or Assistant General Counsel of the Company), the Company shall furnish or cause to be furnished forthwith to each of you a written opinion of counsel for the Company acceptable to the Agents, dated the date of the effectiveness of such amendment or the date of filing of such supplement or the filing of such document incorporated by reference into the Registration Statement or the Prospectus, in form satisfactory to you, relating to the Registration Statement and the Prospectus.
(n) Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information, whether by incorporation by reference in whole or in part or otherwise, the Company shall cause its Accountants forthwith to furnish to each of you a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form satisfactory to you, of the same tenor as the letter referred to in Section 5(d) with such changes as may be necessary to amend reflect the amended or supplemental financial information included in the Registration Statement and the Prospectus and the other financial information of the Company available within five days of the date of such letter; provided, however, that such Accountants need only furnish you a letter in compliance with SAS 71, as appropriately modified, where such amendment or supplement or document incorporated by reference only sets forth unaudited quarterly financial information contained in the Prospectus Company's Quarterly Report on Form 10-Q.
(o) Between the date of any Terms Agreement and the settlement date with respect to comply with the Offered Securities Act covered thereby, the Company will not, without the prior consent of each of you that is a party to such Terms Agreement, offer or sell, or enter into any other lawagreement to sell, any debt securities of the Company, at other than (i) borrowings under the Company's revolving credit agreements and lines of credit and (ii) issuances of the Company's commercial paper.
(p) The Company shall offer to any person who has agreed to purchase Offered Securities as a result of an offer to purchase solicited by any of you the right to refuse to purchase and pay for such Offered Securities if, on the related settlement date fixed pursuant to the Procedure, (i) the condition set forth in Section 5(a) hereof shall not be satisfied, (ii) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall have been lowered since that date or any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its own expenseratings of any debt securities of the Company or (iii) if any of the events set forth in clause (ii) or clause (iii) of the second sentence of Section 9 hereof shall have occurred (it being understood that, will forthwith prepare and file for purposes of this paragraph (p), the judgment of such person shall be substituted for the judgment of the Agent with respect to the Commission an appropriate amendment or supplement theretomatters referred to in clause (ii) of the second sentence of Section 9 hereof, and will furnish that the Agent shall have no duty or obligation to the Underwriter exercise its judgment on behalf of such person). This paragraph (p) shall not affect any other right of any person who has agreed to purchase Offered Securities to refuse to purchase and each Selected Dealer through whom Units may be sold, without charge, a reasonable number pay for such Offered Securities that arises under any other provision of copies thereofthis Agreement.
Appears in 2 contracts
Sources: Distribution Agreement (PHH Corp), Distribution Agreement (PHH Corp)
Covenants of the Company. The Company Company, covenants and agrees with the Underwriter thatyou for your benefit, as follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm you (confirming such advice notice in writing writing) (i) when any post-effective amendment to the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the a Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order suspending the suspension use of qualification of the Units for offering or sale in any state or jurisdiction, a Prospectus or the initiation of any proceeding proceedings for such purposes and that purpose, (iv) within the period of time referred to in Section 6.03 below, of the happening occurrence of any event that makes any statement made during the period in which a Prospectus is required to be delivered under the Act as a result of which, in the Registration Statement judgment of the Company, (A) a Prospectus would include an untrue statement of a material fact or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or therein, in the light of the necessity circumstances under which they were made, not misleading, or (B) the sales literature would include an untrue statement of a material fact and (v) of the receipt of any notification with respect to amend the suspension of the qualification of the Notes for sale in any jurisdiction or supplement the Prospectus (as then amended initiation or supplemented) threatening of any proceeding for such purpose. The Company will make every reasonable effort to comply with prevent the Securities Act or any other lawissuance by the Commission of an order suspending the effectiveness of the Registration Statement. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementsuch order, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible timeas promptly as possible.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from (b) From time to time, for such period time so long as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the Act, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be soldyou, without charge, as many copies of the each Prospectus (and of or any amendment or supplement thereto) thereto as they you may reasonably request. The Company consents to the use of such each Prospectus (and of or any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered thereto by the Underwriter and by Selected Dealers through whom Units may be soldyou, both in connection with the offering offer or sale of the Units Notes and for such period of time thereafter as the a Prospectus is required by law to be delivered in connection therewith. If during such the period of time in which a Prospectus is required to be delivered under the Act any event shall occur that occurs which, in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires would require that a material fact Prospectus be stated in the Prospectus (as then amended or supplemented) supplemented in order to make the statements therein, in the light of the circumstances under which they were made, not materially misleading, or if in the judgment of the Company it is necessary to supplement or amend the Prospectus to comply with applicable law, the Company will promptly prepare and file with the Commission a supplement or amendment thereto, which will effect such compliance, and will deliver to you, without charge, such number of copies thereof as you may reasonably request.
(c) If during the period in which a Prospectus is required to be delivered under the Act an event occurs which, in the judgment of the Company, would require that any sales literature be amended or supplemented in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus in order to comply with the Securities Act or any other applicable law, the Company, at its own expense, Company will forthwith prepare and file with promptly notify you in writing of the Commission an appropriate amendment or supplement theretooccurrence of such event, and thereafter neither the Company nor you shall distribute to investors or otherwise use any such sales literature unless so amended or supplemented.
(d) The Company will furnish notify you as to the Underwriter jurisdictions in which counsel to the Company has indicated the Notes are qualified for offering and each Selected Dealer through whom Units may be sold, without charge, a reasonable number sale under the securities and Blue Sky laws of copies thereofsuch jurisdictions.
Appears in 2 contracts
Sources: Distribution Agreement (Caterpillar Financial Services Corp), Distribution Agreement (Caterpillar Financial Services Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatyou as follows:
6.01. The Company (a) It will endeavor to cause notify you immediately and confirm the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice notice in writing (i) when the Registration Statement has become and any post-effective and when any amendment thereto thereafter becomes shall have become effective, (ii) of the receipt of any comments from the Commission with respect to the Registration Statement or any post-effective amendment, (iii) of any request by the Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional informationinformation relating thereto, and (iiiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units any proceedings for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order shall at any time be issued, to obtain the withdrawal of such order lifting thereof at the earliest possible timemoment.
6.02. The Company (b) It will not give you notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or make any amendment or supplement to the Prospectus of (including any revised prospectus which the Underwriter shall Company proposes for use by the Agent in connection with the offering of the Units which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not have been advised previously such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriter you shall reasonably object in writing promptly after being so advisedwriting.
6.03. On the Effective Date (c) It will deliver to you, as soon as available, one signed copy of the Registration Statement as originally filed and of each amendment thereto and one set of exhibits thereto.
(d) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time, for such time during the period as in when the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the Act, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many such number of copies of the Prospectus (and of any amendment as amended or supplement theretosupplemented) as they you may reasonably request for the purposes contemplated by the Act or the Regulations, and such number of copies of the Subscription Agreement and the LLC Agreement as you may reasonably request. The Company consents .
(e) During the period when the Prospectus is required to be delivered pursuant to the use Act, the Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in, the Units during such Prospectus (and of any amendment or supplement thereto) period in accordance with the provisions herein and as set forth in the Prospectus.
(f) If any event relating to or affecting the Company shall occur as a result of which it is necessary, in your view, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the Securities Act circumstances existing at the time it is delivered to a subscriber, the Company will forthwith prepare and with the securities furnish to you, without expense to you, a reasonable number of copies of an amendment or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be soldamendments of, both in connection with the offering or sale of the Units and for such period of time thereafter as a supplement or supplements to, the Prospectus is required by law (in form and substance satisfactory to be delivered in connection therewith. If during such period you) which amend or supplement the Prospectus so that as amended or supplemented it will not contain an untrue statement of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a subscriber, not misleading. For the purposes of this Section 3(f), the Company will furnish such information with respect to themselves as you may from time to time reasonably request.
(g) It will comply with all applicable registration, filing and reporting requirements of the Exchange Act.
(h) It will endeavor in good faith, in cooperation with you, to qualify the Units for offering and sale under the applicable securities or "blue sky" laws of such jurisdictions as you may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify to do business or to qualify as a dealer in securities in any jurisdiction in which it is not so qualified. It will give you notice of any correspondence received from any state securities commission regarding the Offering and will give you notice of its intention to file, or if prepare for filing, any materials related to the Offering with any state securities commission; it is necessary will furnish you copies of any of the foregoing promptly upon receipt or prior to amend filing, as applicable, and will not file any such materials to which you shall reasonably object in writing. In each jurisdiction where the Units shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or supplement may be required by the Prospectus laws of such jurisdiction.
(i) It will make generally available to comply the Company's security holders (i.e., the holders of Units) as soon as practicable, but not later than 120 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the Securities provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, which need not be certified by independent public accountants unless required by the Act or any other lawthe Regulations) covering the twelve-month period, or such earlier period since the Company's inception, beginning not later than the first day of the Company's fiscal quarter following the effective date of the Registration Statement. As used in this subsection, the terms "earnings statement" and "made generally available to the Company's security holders" shall have the meanings contained in Rule 158 promulgated under the Act.
(j) It will for a period of two years following the Offering Termination Date or the earlier expiration or termination of this Agreement pursuant to Section 10 below, furnish directly to you the following:
(i) as soon as practicable after the end of each fiscal year, one copy of the Company's annual report, including therein the accountants' report, the balance sheet, the related statements of profit and loss and cash flows for the Company, together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such period, setting forth in reasonable detail its own expensefinancial position, will forthwith prepare together with related statements of profit and loss and cash flows, none of which statements need be audited, but shall be certified as correct by the Company;
(iii) copies of any report, application or document which the Company shall file with the Commission an appropriate amendment or supplement theretoCommission; and
(iv) as soon as the same shall be sent to holders of Units, and will furnish each communication which shall be sent to the Underwriter holders of Units, including any other annual or interim report of the Company.
(k) It will deliver to you, from time to time, all supplemental sales material (whether designated solely for broker-dealer use or otherwise) proposed to be used or delivered by the Company in connection with the offering of Units.
(l) It intends to source funds and each Selected Dealer through whom to use funds in the manner specified in the Prospectus.
(m) It will use the net proceeds received by it from the sale of the Units may be soldbeing sold by it in the manner specified in the Prospectus.
(n) It will maintain adequate books and records setting forth a true and accurate account of all business transactions arising out of and in connection with the conduct of the Company. You or your designated representative shall have the right, without chargeat any reasonable time, a reasonable number to have access to and inspect and copy the contents of copies thereofsuch books and records.
Appears in 2 contracts
Sources: Agency Agreement (Oregon Trail Ethanol Coalition LLC), Agency Agreement (Oregon Trail Ethanol Coalition LLC)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective effective. UVEST will have the opportunity to review and approve the Registration Statement and any amendment thereto. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice UVEST in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective) or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in any state supplement to the Registration Statement (either before or jurisdiction, after it becomes effective) or the initiation Prospectus of which UVEST has not been furnished with a copy a reasonable time prior to such filing or to which UVEST reasonably objects or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon UVEST's request, any proceeding for such purposes and (iv) within the period of time referred amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in UVEST's reasonable judgment may be necessary to enable UVEST to continue the distribution of the Shares in compliance with Chapter 78A, the 1933 Act, and the Rules and Regulations, and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change promptly as possible. Additionally, in the Registration Statement event that UVEST is required to make any filings with the NASD or the Prospectus North Carolina Securities Division in connection with this Offering, the Company will apply its best efforts to cooperate with UVEST. The Company covenants that it will not commence the Offering in North Carolina until such time as UVEST has received any required approvals from the North Carolina Securities Division.
(c) If at any time within the nine-month period referred to in Section 10(a)(3) of the 1933 Act during which a prospectus relating to the Common Shares is required to be delivered under the 1933 Act any event occurs, as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities 1933 Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementRules and Regulations, the Company will make every reasonable effort promptly advise UVEST thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to obtain cause the withdrawal of same to become effective as soon as possible; and, in case UVEST is required to deliver a prospectus after such order nine-month period, the Company upon request, but at the earliest possible time.
6.02. The Company expense of UVEST, will not file any promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or make any amendment or supplement Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will timely file such reports as are necessary pursuant to the Prospectus Exchange Act in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of which Section 11(a) of the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised1933 Act.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for (e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawUVEST, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretonine-month period referred to in Section 10(a)(3) of the 1933 Act, and will furnish to UVEST or mail to the Underwriter order of UVEST copies of the Registration Statement and the Prospectus and all amendments and supplements to any such documents, in each Selected Dealer through whom Units case as soon as available and in such quantities as UVEST may be soldrequest, without chargefor the purposes contemplated by the Act.
(f) The Company shall qualify or register the Shares for sale under (or obtain exemptions from the application of) Chapter 78A, will comply with such law and will continue such qualification, registration and exemption in effect so long as reasonably required for the distribution of the Shares. The Company will advise UVEST promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with UVEST's cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) In the event that the Company intends to publish or distribute any sales literature, advertisements or other communications ("Marketing Material") to existing shareholders or prospective purchasers of the Shares in connection with the Offering, the Company will afford UVEST with a reasonable number opportunity to review and approve the Marketing Material prior to such publication or distribution.
(h) The Company will apply the net proceeds of copies thereofthe sale of the Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus. UVEST may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 2 contracts
Sources: Selling Agent Placement Agreement (HCSB Financial Corp), Selling Agent Placement Agreement (HCSB Financial Corp)
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) After the date hereof, the Company will not at any time, whether before or after the Effective Date, file any amendment to the Registration Statement or the Prospectus, or any supplement to the Prospectus, of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative or the Underwriters' counsel shall have reasonably objected in writing on the ground that it is not in compliance with the Act or the Rules and Regulations.
(b) The Company will endeavor use its best efforts to cause the Registration Statement to become effective (provided, however, the Company shall not cause the Registration Statement to become effective without the written consent of Tasin) and will advise the Underwriter promptly andRepresentative, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has shall have become effective and when any amendment thereto thereafter becomes shall have become effective, and when any amendment of or supplement to the Prospectus shall be filed with the Commission, (ii) of any request by when the Commission shall make request or suggestion for amendments or supplements any amendment to the Registration Statement or the Prospectus or for additional informationinformation and the nature and substance thereof, and (iii) of the issuance by the Commission of any stop an order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for that purpose, and will use its best efforts to prevent the issuance of such purposes and (iv) within the period of time referred to in Section 6.03 belowan order, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to if such an order shall be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementissued, the Company will make every reasonable effort to obtain the withdrawal of such order thereof at the earliest possible timemoment.
6.02. (c) The Company will not prepare and file any amendment with the Commission, promptly upon the request of the Representative, such amendments, or supplements to the Registration Statement or make any amendment or supplement Prospectus, in form and substance satisfactory to counsel to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to timeCompany, for such period as in the written reasonable opinion of Xxxxxx Xxxxx P.C., as counsel for to the Underwriter a Prospectus is required by law to Underwriters, may be delivered necessary or advisable in connection with sales the offering or distribution of the Units, and will diligently use its best efforts to cause the same to become effective.
(d) The Company will, at its expense, when and as requested by an Underwriter the Representative, supply all necessary documents, exhibits and information, and execute all such applications, instruments and papers as may be required, in the opinion of the Underwriters' counsel, to qualify the Units or such part thereof as the Representative may determine, for sale under the so-called "Blue Sky" Laws of such states as the Representative shall designate, and to continue such qualification in effect so long as required for the purposes of the distribution of the Units, provided, however, that the Company shall not be required to qualify as a Selected Dealerforeign corporation or dealer in securities or to file a consent to service of process in any state in any action other than one arising out of the offering or sale of the Units.
(e) The Company will, at its own expense, file and provide, and continue to file and provide, such reports, financial statements and other information as may be required by the Commission, or the proper public bodies of the States in which the Units may be qualified for sale, for so long as required by applicable law, rule or regulation and will provide the Representative with copies of all such registrations, filings and reports on a timely basis.
(f) During the period of five years from the Effective Date, the Company will deliver to the Underwriter and a copy of each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment annual report of the Company, and will deliver to the Underwriter (i) within 50 days after the end of each of the Company's first three quarter-yearly fiscal periods, a balance sheet of the Company as at the end of such quarter-yearly period, together with a statement of its income and a statement of changes in its cash flow for such period (Form 10-QSB), all in reasonable detail, signed by its principal financial or accounting officer, (ii) within 105 days after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with a statement of its income and statement of cash flow for such fiscal year (Form 10-KSB), such balance sheet and statement of cash flow for such fiscal year to be in reasonable detail and to be accompanied by a certificate or report of independent public accountants, (who may be the opinion of counsel regular accountants for the UnderwriterCompany), requires that (iii) as soon as available a material fact be stated in copy of every other report (financial or other) mailed to the Prospectus stockholders, and (iv) as then soon as available a copy of every non-confidential report and financial statement furnished to or filed with the Commission or with any securities exchange pursuant to requirements by or agreement with such exchange or the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), or supplemented) in order to make the statements therein, in light any regulations of the circumstances under which they were madeCommission thereunder. If and for so long as the Company has one or more active subsidiaries, not misleadingthe financial statements required by (i) and (ii) above shall be furnished on a consolidated basis in respect of the Company and all of the Company's subsidiaries. The financial statements referred to in (ii) shall also be furnished to all of the stockholders of the Company as soon as practicable after the 90 days referred to therein.
(g) The Company represents that with respect to the Warrants and the shares of Common Stock, or if it is necessary to amend or supplement the Prospectus to comply will prepare and file a Registration Statement with the Securities Act or any other lawCommission pursuant to Section 12(g) of the 1934 Act, prior to the CompanyEffective Date with a request that such Registration Statement will become effective on the Effective Date. The Company understands that, at its own expenseto register, will forthwith it must prepare and file with the Securities and Exchange Commission an appropriate amendment a General Form of Registration of Securities (Form 8-A or supplement theretoForm 10). In addition, the Company agrees to qualify its Units, Common Stock and the Warrants for listing on the NASDAQ system on the Effective Date and will furnish take all reasonable and necessary and appropriate action so that the securities continue to be listed for trading in the NASDAQ system for at least ten years from the Effective Date provided the Company otherwise complies with the prevailing maintenance requirements. In addition, at such time as the Company qualifies for listing its securities on the National Market System of NASDAQ, the Company will use its best efforts to have the Company's Units and components thereof listed on the National Market System of NASDAQ in lieu of listing as Small-Cap Issues on NASDAQ. For so long as the Company is a reporting company under the 1934 Act, the Company shall comply with all periodic reporting and proxy solicitation requirements imposed by the Commission pursuant to the Underwriter 1934 Act.
(h) The Company will make generally available to its security holders, as soon as practicable, but in no event later than 15 months after the Effective Date, an earnings statement of the Company (which need not be audited) in reasonable detail, covering a period of at least twelve months beginning after the Effective Date, which earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) The Company will, on or about the Effective Date, apply for listing in Standard and Poor's Corporation Records and Standard & Poor's Monthly Stock Guide and shall use its best efforts to have the Company listed in such reports for a period of not less than ten (10) years from the Closing Date. The Company will request accelerated treatment in the Daily News Supplement of Standard and Poor's Corporation Records.
(j) The Company shall employ the services of an auditing firm acceptable to the Representative in connection with the preparation of the financial statements required to be included in the Registration Statement and shall continue to appoint such auditors or such other auditors as are reasonably acceptable to the Representative for a period of five (5) years following the Effective Date of the Registration Statement. Said financial statements shall be prepared in accordance with Regulation S-X under the Rules and Regulations. The Company shall appoint North American Transfer Co. as transfer agent for the Common Stock (the "Transfer Agent") and as warrant agent for the Warrants.
(k) Prior to the Effective Date, the Company will enter into employment contracts with its executive officers and directors in the form filed with the Securities and Exchange Commission and approved by the Representative.
(l) Within ninety (90) days subsequent to the Effective Date, the Company will furnish "Key Man" Life Insurance in the amount of $1,000,000 each Selected Dealer through whom Units may be soldon the lives of Xxxxx X. Xxxxxx, without charge, a reasonable number of copies thereof.Xxxxx X.
Appears in 2 contracts
Sources: Underwriting Agreement (Worldwide Wireless Inc), Underwriting Agreement (Worldwide Wireless Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 6(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03. (d) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers selected dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(e) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(f) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation, including Rule 158 under the Securities Act.
(g) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(h) The Company will use its best efforts to have the Shares qualified for listing on the NASDAQ Global Market, subject to official notice of issuance of the Shares being sold by the Company, immediately after the Closing Date or as soon as practicable thereafter and, upon such issuance, the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Global Market issuers.
Appears in 2 contracts
Sources: Underwriting and Advisory Agreement (Waccamaw Bankshares Inc), Underwriting and Advisory Agreement (Waccamaw Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatthat it will:
6.01. The Company will endeavor (a) Use every reasonable effort to cause the Registration Statement to become effective and will advise notify you immediately, and confirm the Underwriter promptly andnotice in writing, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become and any post-effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending or of the effectiveness initiation, or the threatening, of any proceedings for that purpose, and (iii) of the receipt of any comments from the Commission. The Company will make every reasonable effort to prevent the issuance of a stop order, and, if the Commission shall enter a stop order at any time, the Company will make every reasonable effort to obtain the lifting of such order at the earliest possible moment.
(b) During the time when a prospectus is required to be delivered under the Act, comply so far as it is able with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Stock in accordance with the provisions hereof and the Prospectus. If at any time when a prospectus relating to the Stock is required to be delivered under the Act any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for Xxxxx & Co., the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) supplemented includes an untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act or any other lawAct, the Company, at its own expense, Company will forthwith notify you promptly and prepare and file with the Commission an appropriate amendment or supplement theretoin form satisfactory to you. The cost of preparing, filing and will furnish delivering copies of such amendment or supplement shall be paid by the Company, unless such untrue statement or omission is made in reliance upon and in conformity with the written information furnished to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable Company by you with respect to Xxxxx & Co. expressly for use in connection with the Registration Statement or Prospectus.
(c) Deliver to Xxxxx & Co. such number of copies of each Preliminary Prospectus as it may reasonably request and, as soon as the Registration Statement, or any amendment or supplement thereto, becomes effective, deliver to you one signed copy of the Registration Statement, including exhibits, and all post-effective amendments thereto and deliver to you such number of copies of the Prospectus, the Registration Statement and supplements and amendments thereto, if any, as you may reasonably request for the purposes contemplated by the Act.
(d) Endeavor in good faith, in cooperation with you, at or prior to the time the Registration Statement becomes effective, to qualify the Stock for offering and sale under the securities laws relating to the offering or sale of the Stock in such jurisdictions as you may reasonably designate; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or taxation or be required to qualify to do business as a foreign corporation where it is not now so qualified. In each jurisdiction where such qualification shall be affected, the Company will, unless you agree that such action is not at the time necessary or advisable, file and make statements or reports at such times as may reasonably be required by the laws of such jurisdiction.
(e) Make generally available to its security holders as soon as practicable, but not later than the first day of the fifteenth full calendar month following the effective date of the Registration Statement (as defined in Rule 158(c) of the Regulations), an earning statement of the Company (which need not be certified by independent certified public accountants unless required by the Act or the Regulations, but which shall satisfy the provisions of Section 11(a) of the Act including, at the Company's option, Rule 158 of the Regulations).
(f) For a period of 150 days after the date of the Prospectus, not issue, sell, contract to sell, grant any option for the sale of or otherwise dispose of, directly or indirectly, any shares of Common Stock of the Company (or securities convertible into or exercisable for such Common Stock) other than the Firm Stock and Additional Stock (if applicable) being sold by the Company without the prior written consent of Xxxxx & Co., other than options and Common Stock granted and/or issued to officers, directors or employees from time to time in the ordinary course of business pursuant to employment agreements and stock option or stock bonus plans currently in effect.
(g) For a period of five years from the effective date of the Registration Statement furnish you with the following:
(i) as soon as practicable after they have been sent to shareholders of the Company or filed with the Commission, three copies of each annual and interim financial and other report or communications sent by the Company to its shareholders or filed with the Commission;
(ii) as soon as practicable, three copies of every press release and every material news item and article in respect of the Company or the affairs of the Company which was released by the Company; and
(iii) such additional documents and information with respect to the Company as you may from time to time reasonably request, including without limitation, information to comply with Rule 15c2-11 of the Rules and Section 4 of Schedule H of the NASD By-laws, to the extent legally permissible.
(h) Apply the net proceeds from the offering received by it in the manner set forth under "Use of Proceeds" in the Prospectus.
(i) Furnish to you as early as practicable prior to the Closing Date, but not later than two full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company and its Subsidiary which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 7(f) hereof.
(j) Not file any amendment or supplement to the Registration Statement or Prospectus after the effective date of the Registration Statement to which you shall reasonably object in writing after being furnished a copy thereof.
(k) Use every reasonable effort to effect the listing of the Common Stock, including, without limitation, the Firm Stock and the Additional Stock, on the Market as promptly as practicable.
(l) Comply with all registration, filing and reporting requirements of the Act or the Exchange Act which may from time to time be applicable to the Company or its Subsidiary.
Appears in 2 contracts
Sources: Underwriting Agreement (Dearborn Bancorp Inc /Mi/), Underwriting Agreement (Dearborn Bancorp Inc /Mi/)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes and (ivthat purpose or of any examination pursuant to Section 8(e) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in 1933 Act concerning the Registration Statement and if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Shares, and will also advise you promptly of any request of the Commission for amendment or supplement of the Registration Statement, of any preliminary prospectus or of the Prospectus, or for additional information.
(b) The Company will give you notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any Rule 462(b) Registration Statement or any amendment or supplement to the Prospectus (as then amended or supplemented) untrue including any revised prospectus which the Company proposes for use by the Underwriters in any material respect or that requires connection with the making offering of any addition to or change in the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Prospectus case may be, and will not file any such amendment or supplement or use any such prospectus to which you or counsel for the Underwriters shall reasonably object.
(c) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act any event occurs as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the Company, at its own expense, Company promptly will forthwith advise you thereof and will promptly prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) If at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary to make the statements therein, in the light of the circumstances, prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) As soon as practicable after the end of the fiscal year ending December 31, 2006, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(f) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense, subject to the provisions of subsection (d) hereof, copies of the Registration Statement, the Prospectus, any Permitted Free Writing Prospectus hereinafter defined, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(g) The Company will cooperate with the Underwriters in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(h) During the period of five years hereafter, the Company will furnish you and each of the other Underwriters upon request with a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD; (ii) as soon as practicable after the release thereof, of each material press release in respect of the Company; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(i) The Company will use the net proceeds received by it from the sale of the Shares being sold by it in the manner specified in the Prospectus.
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A, then immediately following the execution of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Underwriter Registration Statement (including an amended Prospectus), containing all information so omitted. If required, the Company will prepare and file, or transmit for filing, a Rule 462(b) Registration Statement not later than the date of the execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(k) The Company will comply with all registration, filing and reporting requirements of the Exchange Act and the Nasdaq National Market and will file with the Commission in a timely manner all reports on Form SR required by Rule 463 and will furnish you copies of any such reports as soon as practicable after the filing thereof; and the Company and its subsidiaries will comply in all material respects with all applicable provisions of the Sxxxxxxx-Xxxxx Act.
(l) The Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by the Sxxxxxxx-Xxxxx Act and the applicable regulations thereunder, that are designed to ensure that information required to be -11- disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to Company, including its subsidiaries, is made known to them by others within those entities.
(m) The Company and its subsidiaries will maintain a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) amounts reflected on the Company's consolidated balance sheet for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(n) The Company agrees not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock (except, in each Selected Dealer through whom Units case, Common Stock sold pursuant to this Agreement or issued pursuant to currently outstanding options, warrants or convertible securities and except for options to be granted under existing stock option plans) without the prior written consent of Wxxxxxx Xxxxx & Company, L.L.C. for a period of 180 days after this Agreement becomes effective (the "LOCK-UP PERIOD"); PROVIDED, HOWEVER, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in either case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless Wxxxxxx Xxxxx & Company, L.L.C. waives, in writing, such extension. The Company has obtained similar agreements from each of its officers and directors and current stockholders and optionholders and agrees not to waive or fail to enforce any such agreement (it being hereby acknowledged by the Underwriters that they have requested such enforcement). Notwithstanding the foregoing, during the Lock-Up Period, the Company may issue a number of shares of Common Stock with a value of up to an aggregate of $25.0 million in connection with one or more acquisitions by the Company, provided in each case that each recipient of such shares of Common Stock executes an agreement reasonably satisfactory to Wxxxxxx Xxxxx & Company, L.L.C. to be soldsubject to the foregoing restrictions in respect of such shares of Common Stock for the duration of the Lock-Up Period. The per share value of the Common Stock issued in connection with any such acquisition by the Company shall be equal to the average closing price of the Common Stock over the five consecutive trading days immediately prior to the public announcement of such acquisition.
(o) The Company hereby agrees that it will ensure that the Reserved Shares will be restricted as required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. The Underwriters will notify the Company as to which persons will need to be so restricted and the Company's obligations under this Section 5(o) will extend only to such persons. At the request of the Underwriters, the Company will direct the transfer agent to place a stop transfer restriction upon such securities for such period of time. Should the Company release, or seek to release, from such restrictions any of the Reserved Shares, the Company agrees to reimburse the Underwriters for any reasonable expenses (including, without chargelimitation, a reasonable number of copies thereoflegal expenses) they incur in connection with such release.
(p) The Company will file and cause to become effective the Charter Amendment on or prior to the First Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Clayton Holdings Inc), Underwriting Agreement (Clayton Holdings Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement registration statement as filed and any subsequent amendments to such registration statement to become effective as promptly as possible and will advise notify the Underwriter promptly and, if requested by the Underwriter, will immediately and confirm such advice in writing of the following:
(i) when When the Registration Statement has registration statement and any amendment to such registration statement shall have become effective and when or any amendment thereto thereafter becomes effective, supplement to the prospectus or any amended prospectus shall have been filed;
(ii) of Of any request by the Commission for amendments or supplements any amendment to the Registration Statement registration statement or any amendment or supplement to the Prospectus prospectus or for additional information, ; and
(iii) of Of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or of the institution of any proceedings for that purpose, or of the institution or threatening by the Commission of any investigation or other proceeding that might result in the suspension of the use of the prospectus, or of the suspension of the qualification of the Units shares for offering or sale in any state or jurisdiction, or of the initiation institution or threatening of any proceeding proceedings for any such purposes and (iv) within purpose or for the period purpose of time referred to in Section 6.03 below, preventing the use of the happening of any event that makes any statement made or noticing a deficiency in the Registration Statement or the Prospectus (as then prospectus, any amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act prospectus or any other law. If at any time supplement to the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02prospectus. The Company will not file any post-effective amendment to the Registration Statement registration statement or supplement or amendment to the preliminary prospectus or the prospectus or, prior to the completion of the offering of the shares, make any supplement to the prospectus, unless the Underwriter shall have been advised of such amendment or supplement and shall not have reasonably disapproved such amendment or supplement.
(b) If, prior to the Prospectus termination of the Offering Period, or at any time after such date, when a prospectus relating to the shares is required to be delivered under the Securities Act any event occurs as a result of which the Underwriter shall not have been advised previously preliminary prospectus or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (prospectus as then amended or supplemented) supplemented would, in order the Underwriter's judgment with the concurrence of its counsel, include an untrue statement of a material fact or omit to state any material fact necessary to make the statements thereinin such document, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the preliminary prospectus or supplement the Prospectus prospectus to comply with the Securities Act or any other lawAct, the Company, at its own expense, Company promptly will forthwith prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance and, at the Company's expense, will prepare and furnish as many copies of any such amendment or supplement as the Underwriter may reasonably request.
(c) Not later than sixteen months from the date of this Underwriting Agreement, the Company will make generally available to its shareholders an earnings statement covering a period of at least twelve months beginning after the effective date of the registration statement which will satisfy the provisions of Section ll(a) of the Securities Act.
(d) The Company will furnish to the Underwriter copies of the registration statement, each related preliminary prospectus, the prospectus and all amendments and supplements to such documents, in each Selected Dealer through whom Units may be soldcase as soon as available and in such quantities as the Underwriter reasonably requests.
(e) The Company will use its best efforts to arrange for the qualification of the shares under the laws of such jurisdictions as the Underwriter designates and will continue such qualifications in effect so long as required for the offering of the shares as contemplated in this Underwriting Agreement.
(f) During the period of five years from the date of this Underwriting Agreement, without chargethe Company will furnish to the Underwriter, as soon as practicable after the end of each fiscal year, a reasonable number copy of copies thereofits annual report to security holders for such fiscal year, and during such period the Company will also furnish the Underwriter with the following:
(i) As soon as available, a copy of each report or definite proxy statement of the Company filed with the Commission under the Securities Exchange Act or mailed to security holders; and
(ii) From time to time such other information concerning the Company as the Underwriter may reasonably request.
(g) The Company will apply the net proceeds from the sale of the shares to be sold by it under this Underwriting Agreement for the purposes set out in the prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Alanar Real Estate Investment Trust Series 1 Corp), Underwriting Agreement (Alanar Real Estate Investment Trust Series 1 Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective effective. WSI will have the opportunity to review and approve the Registration Statement and any amendment thereto. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice WSI in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective) or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in any state supplement to the Registration Statement (either before or jurisdiction, after it becomes effective) or the initiation Prospectus of which WSI has not been furnished with a copy a reasonable time prior to such filing or to which WSI reasonably objects or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon WSI's request, any proceeding for such purposes and (iv) within the period of time referred amendment or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus which in WSI's judgment may be necessary or advisable to enable WSI to continue the distribution of the Common Shares, and will use its best efforts to cause the same to become effective as promptly as possible. In addition, the Company will assist WSI in connection with WSI's filings with the NASD. The Company covenants that it will not commence the offering until such time as WSI has received any required approvals from the NASD.
(c) If at any time within the nine-month period referred to in Section 10(a)(3) of the Act during which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue in any statement of a material respect fact, or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementRules and Regulations, the Company will make every reasonable effort promptly advise WSI thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to obtain cause the withdrawal of same to become effective as soon as possible; and, in case WSI is required to deliver a prospectus after such order nine-month period, the Company upon request, but at the earliest possible time.
6.02. The Company expense of WSI, will not file any promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or make any amendment or supplement Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) The Company will timely file such reports pursuant to the Prospectus Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of which Section 11(a) of the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advisedAct.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for (e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawWSI, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretonine-month period referred to in Section 10(a)(3) of the Act, and will furnish to WSI or mail to the Underwriter order of WSI copies of the Registration Statement and the Prospectus and all amendments and supplements to any such documents, in each Selected Dealer through whom Units case as soon as available and in such quantities as WSI may be soldrequest, without chargefor the purposes contemplated by the Act.
(f) The Company shall qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky securities law of North Carolina, a reasonable number will comply with such law and will continue such qualification, registration and exemption in effect so long as reasonably required for the distribution of copies the Common Shares. The Company will advise WSI promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with WSI's cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus. WSI may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 2 contracts
Sources: Broker Dealer Agreement (United Community Banks Inc), Broker Dealer Agreement (United Community Banks Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. The Company will endeavor to cause (a) Not later than the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerClosing Date, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may Underwriters a conformed copy of the Registration Statement in the form that it or the most recent post-effective amendment thereto became effective, certified by an officer of the Company to be sold, without charge, in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and of any amendment amendments or supplement supplements thereto) as they the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with the Commission pursuant to and in compliance with Rule 424(b) and will advise Morgan Stanley & Co. Incorporated promptly of xxx xxxxxxxe of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which the Company shall have received notice. The Company consents will use its best efforts to prevent the use of such Prospectus (and issuance of any amendment or supplement theretosuch stop order and to secure the prompt removal thereof if issued.
(d) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for During such period of time thereafter as the Prospectus is Underwriters are required by law to be delivered in connection therewith. If during such period of time deliver a prospectus after this Underwriting Agreement has become effective, if any event shall occur that in the judgment of relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of counsel for the Underwritercircumstances when it is delivered to a purchaser of the Bonds, requires that the Company will amend or supplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the Exchange Act which will supplement or amend the Prospectus, so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other lawrequirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture, (iii) legal counsel relating to the qualification of the Bonds under the blue sky laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the Companypreliminary (and any supplemental) blue sky survey, at its own expense, will forthwith prepare any preliminary prospectus supplement relating to the Bonds and file with the Commission an appropriate Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies and (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will furnish reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriter Underwriters for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional Mortgage Bonds without the consent of the Underwriters until the earlier to occur of (i) the Closing Date and each Selected Dealer through whom Units may (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be soldfurnished to the Underwriters a supplemental opinion of counsel for the Company, without chargeaddressed to the Underwriters, a reasonable number of copies thereofstating that all such recordings, registrations and filings have been made.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary Prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will file all reports and other information that it is required to file after the Closing Date pursuant to Section 13 or Section 15(d), as the case may be, of the Exchange Act as necessary to permit the Underwriter to serve, in its sole discretion, as a market maker with respect to the Common Stock.
(h) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(i) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes remain effective, (ii) up to each Closing Date. The Company will notify the Representative promptly of any request by the Commission for amendments any amendment of or supplements supplement to the Registration Statement or the Prospectus or for additional information, will prepare and file with the Commission, promptly upon the Representative's request, any amendments of or supplements to the Registration Statement or Prospectus which, in the Representative's reasonable opinion, may be necessary or advisable in connection with the distribution of the Units; and will not file any amendments and supplements to the Registration Statement as originally filed with the Commission unless it shall first have delivered copies of such amendments or supplements to the Representative, or file any such amendment or supplement to which the Representative shall have reasonably objected in writing to the Company. The Company will immediately advise the Representative by telephone, confirming such advice in writing (iiii) when notice is received from the Commission that the Registration Statement has become effective, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any proceedings or examination under the suspension Act, as soon as the Company is advised thereof, and (iii) of any order or communication of any public authority addressed to the Company suspending or threatening to suspend qualification of the Units for offering or sale in any state or jurisdiction, or state. The Company will use its best efforts to prevent the initiation issuance of any proceeding for stop order or other such purposes and order, and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof.
(ivb) within If, at any time when a prospectus relating to the period of time referred Units is required to in Section 6.03 belowbe delivered under the Act, of the happening of any event that makes any statement made shall have occurred as a result of which, in the Registration Statement opinion of counsel for the Company or in the Prospectus (reasonable opinion of counsel for the Representative, the Prospectus, as then amended or supplemented) , includes an untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act or any other lawAct, the Company, at its own expense, Company will forthwith notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement theretosupplement.
(c) The Company will use its best efforts to take or cause to be taken all necessary action and furnish to whomever the Representative may reasonably direct such information as may be required in qualifying the Units for offering and sale under the Blue Sky or securities laws of such states as the Representative and the Company shall designate. The necessary legal work for such qualifications will be undertaken by counsel for the Company, at the Company's expense. The Company shall not, however, be required to register or qualify as a foreign corporation or as a dealer in securities or, except as to matters and transactions related to the offering or sale of the Units, consent to service of process in any state.
(d) The Company will furnish to each of the several Underwriters, from time to time and without charge, copies of the Registration Statement, each Preliminary Prospectus, the Prospectus (including all documents from which information is incorporated by reference), and all amendments of and supplements to any of such documents, in each case as soon as available and in such quantities as the Representative may from time to time reasonably request for the purposes contemplated by the Act. The Company authorizes the several Underwriters and all dealers to whom any of the Units may be sold by the Underwriters to use the Preliminary Prospectuses and Prospectuses supplied, as from time to time amended or supplemented, in connection with the sale of the Units as and to the extent permitted by federal and applicable state and local securities laws.
(e) The Company will furnish to the Representative two copies of the Registration Statement and all amendments thereof which are signed and include all exhibits and schedules.
(f) The Company will, for a period of five (5) years after the Effective Date, furnish directly to the Representative, and to each Underwriter who may so request in writing, as soon as the same shall be sent to shareholders generally, copies of all annual or interim shareholder reports of the Company, and will, for the same period, also furnish the Representative, and to each Selected Dealer Underwriter who may so request in writing, with the following:
(i) two copies of any report, application, or document (other than exhibits, which, however, will be furnished on request) which the Company shall file with the Commission or any securities exchange;
(ii) as soon as the same shall be sent to shareholders generally, copies of each communication which shall be sent to shareholders; and
(iii) from time to time such other information concerning the Company as the Representative may reasonably request, provided that the Company shall not be required to furnish any information pursuant hereto that is not furnished to its shareholders or not otherwise made publicly available.
(g) The Company will, for a period of five (5) years after the Effective Date, furnish directly to the Representative, quarterly profit and loss statements, reports of the Company's cash flow filed by the Company with the Commission.
(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, a statement of earnings of the Company (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
(i) Whether or not this Agreement becomes effective or is terminated or cancelled or the sale of the Units to the Representative is consummated, and regardless of the reason for or cause of any such termination, cancellation, or failure to consummate, the Company will pay or cause to be paid (A) all expenses (including any transfer taxes) incurred in connection with the delivery to the Representative of the Units, (B) all expenses and fees (including, without limitation, fees and expenses of the Company's accountants and counsel, excluding, however, fees of the Underwriters' counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), each Preliminary Prospectus, the Prospectus, and any amendment thereof or supplement thereto, (C) all fees and expenses incurred by the Company in connection with the Registration Statement, including all Company counsel fees, (D) fees and expenses of the Company's counsel, incurred in connection with the qualification of the Units for offering and sale by the Underwriters or by dealers under the securities or Blue Sky laws of the states and other jurisdictions designated in accordance with Section 4(c) hereof, (E) subject to the further provisions of this Section 4(i), all fees and expenses, including all counsel fees, excluding, however, fees of the Underwriters' counsel, incurred in connection with the review of the offering by the National Association of Securities Dealers, Inc. and listing fees, if any, (F) all costs and expenses incident to qualification of the Common Stock and the Warrants with The Nasdaq National Market, and (G) postage and express charges, due diligence meetings for the investment community and other expenses in connection with delivery of the Preliminary and Final Prospectus to the Underwriters and Blue Sky Registrations, filings and legal expenses. In addition to and not in lieu of the foregoing, the Company shall pay to the Representative on each Closing Date, for out-of-pocket expenses (including fees of Representative's counsel), a nonaccountable expense allowance equal to two percent (2%) of the aggregate purchase price for the Units sold to all the Underwriters on each Closing Date, less the $10,000 refundable retainer (the "Retainer") previously paid by the Company, receipt of which is acknowledged by the Representative. If the Underwriters withdraw from the sale of the Units as herein proposed for any reason other than their inability to sell the Units and through no other fault of their own, or if the sale of the Units as herein proposed is abandoned by the Company, the Company will reimburse the Representative in the amount of all accountable expenses (including fees and disbursements of counsel), in excess of the $10,000 Retainer, incurred by the Representative in connection with the contemplated purchase, offer, and sale of the Units, including without limitation, expenses incurred in their investigation, preparation to market, and marketing of the Units, and in contemplation of performing and in performance of its obligations hereunder, up to an aggregate of $20,000, such expenses and fees to be evidenced by appropriate receipts, invoices, or other documentation. Should the offering as contemplated herein not occur, and should the Representative's accountable expense not exceed the amount of the Retainer, the Representative shall refund to the Company the difference between the Retainer amount and its accountable expenses.
(j) The Company will cause all officers, directors and shareholders of the Company to furnish to the Representative, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Representative, pursuant to which each such person shall agree not to offer for sale, sell, distribute or otherwise dispose of any securities of the Company for a period of 180 days from the date hereof.
(k) The Company will not, during the 180 days following the effective date of the Registration Statement, except with the Representative's prior written consent, offer for sale, sell, distribute, or otherwise dispose of any Common Stock or sell or grant options, rights, or warrants with respect to any Common Stock (except for the grants, options, rights, warrants or convertible securities pursuant to the Company's 1995 Stock Option Plan or sales upon the exercise of options or warrants or the conversion of convertible notes outstanding on the date hereof), otherwise than in accordance with this Agreement or as contemplated by the Prospectus. The Company shall not register the Common Stock or options underlying such 1995 Stock Option Plan within the 180 day period immediately following the date hereof.
(l) The Company authorizes the Underwriters and all dealers to whom any of the Units may be soldsold by the Underwriters in connection with the distribution of the Units, to use the Prospectus as from time to time amended or supplemented in connection with the offering and sale of the Units and in accordance with the applicable provisions of the Act and the applicable Rules and Regulations and applicable state Blue Sky or securities laws.
(m) The Company shall not request an effective date nor allow the Registration Statement to be declared effective without chargethe prior approval of the Representative.
(n) Within the time during which the Prospectus is required to be delivered under the Act, the Company will comply, at its own expense, with all requirements imposed upon it by the Act, by the Rules and Regulations, by the Exchange Act, and by any order of the Commission, so far as necessary to permit the continuance of sales or dealings in the Units.
(o) The Company shall file an application and take all other steps necessary to have the Common Stock and Warrants actually listed on The Nasdaq National Market on or prior to the effective date of the Registration Statement under the Act.
(p) The Company will reserve and keep available that maximum number of its authorized but unissued shares of Common Stock which are issuable upon exercise of Warrants and the Underwriter's Warrants during the term of the Warrants and the Underwriter's Warrants (as described in Section 12 hereof).
(q) Prior to the Closing Date, no discussions will be held by officers or directors of the Company with any member of the news media and no news release or other publicity about the Company will be issued or authorized by the Company without prior approval of the Company's and the Representative's respective legal counsel; further, the Company will use its best efforts to prevent discussions by any affiliate or associate of the Company with any member of the news media and the Company will use its best efforts to prevent the issuance of any news release or other publicity by any affiliate or associate of the Company without the prior approval of the Company's and the Representative's respective legal counsel.
(r) The Company shall have obtained a CUSIP number for the Units (and its components) prior to the effective date of the Registration Statement under the Act.
(s) The Company shall supply to the Representative, and its legal counsel, at the Company's cost, one complete bound volume each of all of the documents relating to the public offering, within a reasonable number time after the Closing Date, not to exceed four (4) months. The volume shall be hard cover bound in book format.
(t) The Company will apply the proceeds from the sale of copies thereofthe Units by it to the purposes and in the manner set forth in the Registration Statement and, pending such application, shall invest such net proceeds only in one or more of the following, except as otherwise provided by prior written consent of the Underwriters: (i) interest-bearing obligations issued by the United States Government or issued by an agency or instrumentality of the United States Government and guaranteed by the United States Government and having a maturity not in excess of one year, (ii) interest-bearing domestic commercial paper having a maturity of not more than 365 days and, at the time of purchase by the Company, rated investment grade by Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation, (iii) interest-bearing certificates of deposit issued by a commercial bank chartered by the United States Government or by any state of the United States having shareholders' equity of at least $500,000,000 except that the foregoing notwithstanding, the Company may invest no more than $100,000 of such net proceeds in certificates of deposit issued by any such commercial bank regardless of shareholders' equity, and (iv) shares or other units of interest in a registered open-ended investment company the assets of which aggregate at least $200,000,000 and are invested solely in so-called "money market" obligations.
(u) The Company shall supply to the Representative and its counsel such financial statements, contracts and other corporate documents as the Representative or its counsel may reasonably request, and the Company shall make reasonably available for consultation, such persons involved with the Company's business as the Representative or its counsel shall deem necessary in connection with the Representative's due diligence examination of the Company.
(v) The President of the Company will certify that projections presented to the Representative for its review were prepared in good faith and represent the President's best present estimate of the Company's financial condition following completion of the Initial Public Offering. The President of the Company shall also provide the Representative with her assurance that the proceeds of the Initial Public Offering are sufficient to fund the Company over the next twelve months from the date of receipt.
(w) All documents to be filed with the Commission shall be submitted to the Representative and its counsel for prior approval and no amendment will be made to the Registration Statement or to any preliminary or final prospectus without the prior consent of such counsel, which approval and consent shall not be unreasonably withheld.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) After the date hereof, the Company will not at any time, whether before or after the Effective Date, file any amendment to the Registration Statement or the Prospectus, or any supplement to the Prospectus, of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative or the Underwriters' counsel shall have reasonably objected in writing on the ground that it is not in compliance with the Act or the Rules and Regulations.
(b) The Company will endeavor use its best efforts to cause the Registration Statement to become effective (provided, however, the Company shall not cause the Registration Statement to become effective without the written consent of VTR) and will advise the Underwriter promptly andRepresentative, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has shall have become effective and when any amendment thereto thereafter becomes shall have become effective, and when any amendment of or supplement to the Prospectus shall be filed with the Commission, (ii) of any request by when the Commission shall make request or suggestion for amendments or supplements any amendment to the Registration Statement or the Prospectus or for additional informationinformation and the nature and substance thereof, and (iii) of the issuance by the Commission of any stop an order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for that purpose, and will use its best efforts to prevent the issuance of such purposes and (iv) within the period of time referred to in Section 6.03 belowan order, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to if such an order shall be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementissued, the Company will make every reasonable effort to obtain the withdrawal of such order thereof at the earliest possible timemoment.
6.02. (c) The Company will not prepare and file any amendment with the Commission, promptly upon the request of the Representative, such amendments, or supplements to the Registration Statement or make any amendment or supplement Prospectus, in form and substance satisfactory to counsel to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to timeCompany, for such period as in the written reasonable opinion of Xxxxxx Xxxxx P.C., as counsel for to the Underwriter a Prospectus is required by law to Underwriters, may be delivered necessary or advisable in connection with sales the offering or distribution of the Units, and will diligently use its best efforts to cause the same to become effective.
(d) The Company will, at its expense, when and as requested by an Underwriter the Representative, supply all necessary documents, exhibits and information, and execute all such applications, instruments and papers as may be required, in the opinion of the Underwriters' counsel, to qualify the Units or such part thereof as the Representative may determine, for sale under the so-called "Blue Sky" Laws of such states as the Representative shall designate, and to continue such qualification in effect so long as required for the purposes of the distribution of the Units, provided, however, that the Company shall not be required to qualify as a Selected Dealerforeign corporation or dealer in securities or to file a consent to service of process in any state in any action other than one arising out of the offering or sale of the Units.
(e) The Company will, at its own expense, file and provide, and continue to file and provide, such reports, financial statements and other information as may be required by the Commission, or the proper public bodies of the States in which the Units may be qualified for sale, for so long as required by applicable law, rule or regulation and will provide the Representative with copies of all such registrations, filings and reports on a timely basis.
(f) During the period of five years from the Effective Date, the Company will deliver to the Underwriter and a copy of each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment annual report of the Company, and will deliver to the Underwriter (i) within 50 days after the end of each of the Company's first three quarter-yearly fiscal periods, a balance sheet of the Company as at the end of such quarter-yearly period, together with a statement of its income and a statement of changes in its cash flow for such period (Form 10-Q or 10-QSB), all in reasonable detail, signed by its principal financial or accounting officer, (ii) within 105 days after the opinion end of counsel each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with a statement of its income and statement of cash flow for such fiscal year (Form 10-K or 10-KSB), such balance sheet and statement of cash flow for such fiscal year to be in reasonable detail and to be accompanied by a certificate or report of independent public accountants, (who may be the regular accountants for the UnderwriterCompany), requires that (iii) as soon as available a material fact be stated in copy of every other report (financial or other) mailed to the Prospectus stockholders, and (iv) as then soon as available a copy of every non-confidential report and financial statement furnished to or filed with the Commission or with any securities exchange pursuant to requirements by or agreement with such exchange or the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), or supplemented) in order to make the statements therein, in light any regulations of the circumstances under which they were madeCommission thereunder. If and for so long as the Company has one or more active subsidiaries, not misleadingthe financial statements required by (i) and (ii) above shall be furnished on a consolidated basis in respect of the Company and all of the Company's subsidiaries. The financial statements referred to in (ii) shall also be furnished to all of the stockholders of the Company as soon as practicable after the 105 days referred to therein.
(g) The Company represents that, or if with respect to the Units, it is necessary to amend or supplement the Prospectus to comply will prepare and file a Registration Statement with the Securities Commission pursuant to Section 12(g) of the 1934 Act or any other lawprior to the Effective Date with a request that such Registration Statement will become effective on the first day following the Effective Date. The Company understands that, the Companyto register, at its own expense, will forthwith it must prepare and file with the Commission an appropriate amendment a General Form of Registration of Common Stock (Form 8-A or supplement theretoForm 10). The Company shall comply with all periodic reporting and proxy solicitation requirements imposed by the Commission pursuant to the 1934 Act, and will shall promptly furnish you with copies of all material filed with the Commission pursuant to the Underwriter 1934 Act or otherwise furnished to shareholders of the Company.
(h) The Company will make generally available to its security holders, as soon as practicable, but in no event later than 15 months after the Effective Date, an earnings statement of the Company (which need not be audited) in reasonable detail, covering a period of at least twelve months beginning after the Effective Date, which earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) The Company will, on or about the Effective Date, apply for listing in Standard and each Selected Dealer through whom Units Poor's Corporation Records and Standard & Poor's Monthly Stock Guide and shall use its best efforts to have the Company listed in such reports for a period of not less than five (5) years from the Closing Date. The Company will request accelerated treatment in the Daily News Supplement of Standard and Poor's Corporation Records.
(j) The Company shall employ the services of an auditing firm acceptable to the Representative in connection with the preparation of the financial statements required to be included in the Registration Statement and shall continue to appoint such auditors or such other auditors as are reasonably acceptable to the Representative for a period of five (5) years following the Effective Date of the Registration Statement. Said financial statements shall be prepared in accordance with Regulation S-X under the General Rules and Regulations of the 1933 Act. The firm of Xxxxx Xxxxxxxxxx & Co., LLP are deemed acceptable to the Underwriter. The Company shall appoint American Stock Transfer & Trust Company transfer agent (the "Transfer Agent") for the Common Stock and as Warrant Agent for the Warrants.
(k) Until such time as the Company's Common Stock is listed on the New York Stock Exchange, the American Stock Exchange, or the NASDAQ/NMS; the Company shall cause its legal counsel or an independent firm acceptable to the Representative to provide the Representative with a survey, to be updated upon request of the Underwriter, of those states in which the securities of the Company may be soldtraded in non-issuer transactions under the Blue Sky laws of the states and the basis for such authority. The first such survey shall be delivered at closing; the second such survey shall be delivered within five business days of publication of the Company in Standard & Poor's Corporation Records and, without chargethereafter upon request of the Underwriter.
(l) As soon as practicable after the Closing Date, the Company will deliver to the Representative and its counsel a reasonable number total of two bound volumes of copies thereofof all documents relating to the public offering which is the subject of this Agreement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with to the Underwriter thatCanadian Placement Agent that it will:
6.01. The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when Notify the Registration Statement has become effective Canadian Placement Agent as soon as practicable, and confirm such notice promptly in writing, (A) when any amendment thereto thereafter becomes effective, (ii) of any request by event shall have occurred during the Commission for amendments or supplements to period commencing on the Registration Statement or date hereof and ending on the Prospectus or for additional information, (iii) later of the issuance by Closing Date and the Commission last Additional Closing Date (if any) as a result of which the Canadian Memorandum would include any stop order suspending the effectiveness untrue statement of the Registration Statement a material fact or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (B) of the receipt of any notification with respect to the modification, recission, withdrawal or suspension of the qualification or registration of the Shares or of the necessity to amend an exemption from such registration or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or qualification in any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02jurisdiction. The Company will not file use its reasonable best efforts to prevent the issuance of any such modification, rescission, withdrawal or suspension and, if any such modification, rescission, withdrawal or suspension is issued and you so request, to obtain the lifting thereof as promptly as possible.
(ii) Not supplement or amend the Canadian Memorandum unless the Canadian Placement Agent shall have approved of such supplement or amendment to in writing. If, at any time during the Registration Statement or make period commencing on the date hereof and ending on the later of the Closing Date and the last Additional Closing Date (if any), any amendment or supplement to the Prospectus event shall have occurred as a result of which the Underwriter shall not have been advised previously Canadian Memorandum contains any untrue statement of a material fact or omits to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is state any material fact required by law to be delivered in connection with sales by an Underwriter stated therein or a Selected Dealer, necessary to make the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Companystatements therein not misleading, or if, in the opinion of counsel for to the UnderwriterCompany or counsel to the Canadian Placement Agent, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend or supplement the Prospectus Canadian Memorandum to comply with the Act, Regulation D or any applicable securities or "blue sky" laws, the Company will promptly prepare an appropriate supplement or amendment (inform and substance reasonably satisfactory to you) which will correct such statement or omission or which will effect such compliance.
(iii) Deliver without charge to the Canadian Placement Agent such number of copies of the Canadian Memorandum and any supplement or amendment thereto as may reasonably be requested by the Canadian Placement Agent.
(iv) Not directly or indirectly, solicit any offer to buy from, or offer to sell to, any person any Units except through the Canadian Placement Agent or SmallCaps.
(v) Not solicit any offer to buy or offer to sell Units by any form of general solicitation or advertising, including, without limitation, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or advertising.
(vi) At all times during the period commencing on the date hereof and ending on the later of the Closing Date and the last Additional Closing Date (if any), provide to each prospective investor or his purchaser representative, if any, on reasonable request, such information (in addition to that contained in the Canadian Memorandum) concerning the Placement, the Company and any other relevant matters as it possesses or can acquire without unreasonable effort or expense and extend to each prospective investor or his purchaser representative, if any, the opportunity to ask questions of, and receive answers from the Company concerning the terms and conditions of the Placement and the business of the Company and to obtain any other additional information, to the extent it possesses the same or can acquire it without unreasonable effort or expense, as such prospective investor or purchaser representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such Prospective Investor or purchaser representative, as the case may be.
(vii) Notify the Canadian Placement Agent promptly of the acceptance or rejection of any subscription. Any subscription unreasonably rejected shall be deemed to have been accepted for purposes of determining whether at least 500,000 Units have been sold solely for the purpose of determining whether the Canadian Placement Agent is entitled to its compensation pursuant to Schedule A hereof.
(viii) File five (5) copies of a Notice of Sales of Securities on Form D with the Securities and Exchange Commission (the "Commission") no later than 15 days after the first sale of the Units, if required by law. The Company shall file promptly such amendments to such Notices on Form D as shall become necessary and shall also comply with any filing requirement imposed by the laws of any province or jurisdiction in which offers and sales are made. The Company shall furnish you with copies of all such filings.
(ix) Place the following legend on all certificates representing the Units and the Warrants: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE."
(x) Not, directly or indirectly, engage in any act or activity which may jeopardize the status of the offering and sale of the Units as exempt transactions under the Act or under the securities or "blue sky" laws of any jurisdiction in which the Placement may be made.
(xi) Apply the net proceeds from the sale of the Units for the purposes set forth under the caption "Use of Proceeds" in the Canadian Memorandum in substantially the manner indicated thereunder.
(xii) Not, during the period commencing on the date hereof and ending on the later of the Closing Date and the last Additional Closing Date (if any) issue any press release or other communication or hold any press conference with respect to the Company, its financial condition, results of operations, business properties, assets, liabilities or future prospects of the Placement, without the prior written consent of the Canadian Placement Agent and SmallCaps, which consent will not be unreasonably withheld.
(xiii) Not, prior to the completion of the Offering, bid for, purchase, attempt to induce others to purchase, or sell, directly or indirectly, any shares of Common Stock or any other law, securities in violation of the Company, at its own expense, will forthwith prepare and file with provisions of Regulation M under the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereofExchange Act.
Appears in 1 contract
Sources: Placement Agency Agreement (Jaws Technologies Inc /Ny)
Covenants of the Company. The Company covenants ------------------------ and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in your judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in Section 10(a)(3) of the Act during which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after such nine-month period, the Company upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospec- tuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will forthwith prepare furnish to you and the Selling Stockholder or mail to your and the Selling Stockholder's orders copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholder may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of either Xxxxxxxxxx Securities or each of the Representatives (which consent may be soldwithheld at the sole discretion of Xxxxxxxxxx Securities or the Representatives, without chargeas the case may be), the Company will not (other than pursuant to outstanding options and warrants described in the Registration Statement) issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with Common Stock or any other equity security of the Company.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register the Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a reasonable number period of five years after the date hereof.
(k) The Company will use its best efforts to designate the Common Stock for quotation as a national market system security on the NASD Automated Quotation System.
(l) Not later than 4:00 P.M. on the business day following the date Common Shares are released by the Underwriters for sale to the public, the Company shall deliver or cause to be delivered copies thereofof the Prospectus in such quantities and at such places as the Representatives shall request. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and effective. The Company will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement (and make every reasonable effort to obtain the withdrawal of such order as early as possible) or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you promptly of any request of the period Commission for amendment or supplement of time referred to in Section 6.03 belowthe Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information, and will not file any amendment or supplement to the Registration Statement, to any preliminary prospectus or to the Prospectus of which you have not been furnished with a copy prior to such filing or to which you reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act, any event that makes occurs as a result of which the Prospectus, including any amendments or supplements, would include an untrue statement made in the Registration Statement of a material fact, or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by each Underwriter in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the CompanyCompany promptly will advise you thereof and will promptly prepare and, at its own expenseif required pursuant to Rule 424(b), will forthwith prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(d) The Company will not declare or pay any dividend or make any other distribution upon the Common Stock payable to shareholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except as contemplated by the Prospectus.
(e) Not later than 90 days after the close of the period covered thereby, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act and Rule 158 thereunder.
(f) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an underwriter or dealer, the Company will furnish to you at its expense (and consents to the use thereof), subject to the provisions of subsection (b) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(g) The Company will cooperate with the Representatives in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(h) During the period of two years after the date of the Pricing Agreement, the Company will furnish to each Underwriter a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with any securities exchange or the NASD other than a report filed with the Commission and (ii) as soon as available, of each report of the Company mailed to any class of its securityholders; and the Company will notify promptly each Underwriter of the filing of a report with the Commission so that each Underwriter can obtain it from the Internet.
(i) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A, then immediately following the execution and delivery of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended prospectus), containing all information so omitted.
(k) The Company will comply with all of the provisions of each Selected Dealer through whom Units may be soldundertaking contained in the Registration Statement.
(l) The Company will not, without chargethe prior written consent of the Representatives, sell, contract to sell or otherwise dispose of any equity security of the Company (including shares of Common Stock) for a reasonable number period of copies thereof120 days after the effective date of the Registration Statement, other than (i) Common Stock issued and sold to the Underwriters pursuant to this Agreement, and (ii) Common Stock issued upon exercises of outstanding stock options granted under the Company's 1998 Stock Incentive Plan (as such terms are defined in the Prospectus) in the aggregate not to exceed 15% of the issued and outstanding shares of Common Stock as of the date an option is granted. The Company will cause each of its executive officers and directors to deliver to the Representatives on or before the date of this Agreement an agreement satisfactory in form and substance to the Representatives and their counsel, whereby each agrees, for a period of 120 days after the effective date of the Registration Statement, not to offer, sell or otherwise dispose of any shares of Common Stock without the prior written consent of the Representatives ("Lock-Up Letter").
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01(a) The Company shall comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 424(b) not later than the Commission's close of business on the second Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations. The Company will endeavor to cause shall advise you, promptly after it receives notice thereof, of the Registration Statement to become effective and will advise the Underwriter promptly andtime when, if requested by the UnderwriterEffective Date is on or before the date of this Agreement, will confirm such advice in writing (i) when any amendment to the Registration Statement has become been filed or becomes effective and when or any amendment thereto thereafter becomes effective, (ii) supplement to the Prospectus or any amended Prospectus has been filed. The Company shall notify you promptly of any request by the Commission for amendments any amendment of or supplements supplement to the Registration Statement or the Prospectus or for additional information; the Company shall prepare and file with the Commission, (iii) as soon as reasonably practical upon your request, any amendments or supplements to the Registration Statement or the Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Notes; and the Company shall not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof, such consent not to be unreasonably withheld or delayed. The Company shall advise you promptly of the issuance by the Commission or any State or other regulatory body of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus or the Prospectus or suspending the qualification of the Notes for offering or sale in any jurisdiction, or of the institution of any proceedings for any such purpose; and the Company will make every shall use its reasonable effort best efforts to prevent the issuance of any stop order or other such order and, should a stop order or other such order be issued, to obtain as soon as possible the withdrawal of such order at the earliest possible timelifting thereof.
6.02. (b) The Company will not file any amendment shall furnish to each of you and to counsel for the Registration Statement or make any amendment or supplement to the Prospectus Underwriters such number of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date conformed copies of the Registration Statement Statement, as originally filed and thereafter each amendment thereto (excluding exhibits other than this Agreement), the Prospectus and all amendments and supplements to any of such documents (including any document filed under the Exchange Act and deemed to be incorporated by reference in the Preliminary Prospectus or Prospectus), in each case as soon as available and in such quantities as you may from time to timetime reasonably request; provided that, for such period as in the written opinion Prospectus shall be made available to the Underwriters no later than 2 PM New York City time on the next business day succeeding the date of counsel for this Agreement.
(c) Within the Underwriter a time during which the Prospectus relating to the Notes is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the Securities Act, the Company will deliver to shall comply with all requirements imposed upon it by the Underwriter and each Selected Dealer through whom Units may be sold, without chargeSecurities Act, as many copies now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Prospectus (and of any amendment or supplement thereto) Notes as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with contemplated by the provisions of the Securities Act hereof and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewithProspectus. If during such period of time any event shall occur that in the judgment occurs as a result of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in which the Prospectus (as then amended or supplemented) in order supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus or file any document to comply with the Securities Act or any other lawAct, the Company shall promptly notify you and shall, subject to Section 4(a) above, amend the Registration Statement or supplement the Prospectus or file any document (at the expense of the Company) so as to correct such statement or omission or to effect such compliance.
(d) As soon as practicable, at the Company shall make generally available to its own expensesecurity holders (and shall deliver to you) an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(e) Whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, will forthwith prepare the Company shall pay or cause to be paid (A) all fees and file expenses (including, without limitation, all registration and filing fees and fees and expenses of the Company's accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus, the Indenture, the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed with the Commission an appropriate amendment (the "Form T-1") and any amendments or supplement theretosupplements of the foregoing and any documents incorporated by reference into any of the foregoing and the copying, delivery and shipping of this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the Notes (including the cost of printing the Notes), (C) all filing fees and fees and disbursements of counsel to the Underwriters incurred in connection with the qualification of the Notes under state securities or Blue Sky laws not to exceed $10,000, (D) any fees required to be paid to rating agencies incurred in connection with the rating of the Notes, (E) the fees, costs and charges of the Trustee, including the fees and disbursements of counsel for the Trustee, and will furnish (F) all other costs and expenses incident to the Underwriter performance of its obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section, Section 6 and each Selected Dealer through whom Units Section 8 hereof, the Underwriters shall pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses incurred in connection with any offers they may make. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 8 hereof which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be soldperformed or because any other condition of the Underwriters' obligations hereunder is not fulfilled or if the Underwriters shall decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Underwriters pursuant to Section 7 hereof), the Company shall reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with any investigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder.
(f) Until termination of the offering of the Notes, the Company shall timely file all documents and amendments to previously filed documents required to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act.
(g) The Company shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the underwriters shall reasonably request; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(h) The Company shall apply the net proceeds from the sale of the Notes as set forth in the Prospectus.
(i) Until 30 days following the Closing Date, the Company will not, without chargethe prior written consent of the Representatives, a reasonable number directly or indirectly, issue, sell, offer to sell, grant any option for the sale of copies thereofor otherwise dispose of, any debt securities in the same market as the Notes.
Appears in 1 contract
Sources: Underwriting Agreement (Delphi Financial Group Inc/De)
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. The Company will endeavor to cause : Not later than the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerClosing Date, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may Underwriters a conformed copy of the Registration Statement in the form that it or the most recent post-effective amendment thereto became effective, certified by an officer of the Company to be sold, without charge, in such form. The Company will deliver to the Underwriters as many copies of the Prospectus (and of any amendment amendments or supplement supplements thereto) as they the Underwriters may reasonably request. The Company consents will cause the Prospectus to be filed with the use Commission pursuant to and in compliance with Rule 424(b) and will advise the Representative promptly of such Prospectus (and the issuance of any amendment or supplement thereto) in accordance with the provisions of stop order under the Securities Act and with respect to the securities Registration Statement or blue sky laws the institution of the jurisdictions in any proceedings therefor of which the Units are offered by Company shall have received notice. The Company will use its best efforts to prevent the Underwriter issuance of any such stop order and by Selected Dealers through whom Units may be sold, both in connection with to secure the offering or sale of the Units and for prompt removal thereof if issued. During such period of time thereafter as the Prospectus is Underwriters are required by law to be delivered in connection therewith. If during such period of time deliver a prospectus after this Underwriting Agreement has become effective, if any event shall occur that in the judgment of relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of counsel for the Underwritercircumstances when it is delivered to a purchaser of the Bonds, requires that the Company will amend or supplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the Exchange Act which will supplement or amend the Prospectus, so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter. The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner, as to meet the requirements of the last paragraph of Section 11 (a) of the Securities Act and Rule 158 under the Securities Act. At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other lawrequirements deemed by the Company to be unduly burdensome. The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture, (iii) legal counsel relating to the qualification of the Bonds under the blue sky laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the Companypreliminary (and any supplemental) blue sky survey, at its own expense, will forthwith prepare any preliminary prospectus supplement relating to the Bonds and file with the Commission an appropriate Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies, and (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will furnish reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriter Underwriters for damages on account of loss of anticipated profits. The Company will not sell any additional first mortgage bonds without the consent of the Representative until the earlier to occur of (i) the Closing Date and each Selected Dealer through whom Units may (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date. As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be soldfurnished to the Underwriters a supplemental opinion of counsel for the Company, without chargeaddressed to the Underwriters, a reasonable number of copies thereofstating that all such recordings, registrations and filings have been made.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the Underwriter Underwriters that:
6.01. (a) The Company will endeavor make every reasonable effort to cause the Registration Statement to become effective and will advise you when it is effective under the Underwriter promptly and, if requested by the Underwriter, Act. The Company will confirm such advice in writing (i) when not file any amendment to the Registration Statement has become effective Statement, or supplement to the Prospectus, unless a copy thereof is first submitted to you within a reasonable period of time prior to the filing thereof and when any you have no reasonable objection to such amendment thereto thereafter becomes effective, or supplement.
(iib) The Company will advise you promptly of any request by of the Commission for amendments or supplements to amendment of the Registration Statement or the Prospectus or for additional information, (iii) information and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for such purposes that purpose of which it has knowledge, and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to prevent the issuance of any such stop order and to obtain as soon as possible the withdrawal of such order at the earliest possible timelifting thereof, if issued.
6.02. (c) The Company will not file any amendment comply, to the Registration Statement or make any amendment or supplement best of its ability, with the Act so as to permit the Prospectus continuance of which sales of and dealings in the Underwriter shall not have been advised previously or to which Stock under the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, Act for such period as in the written opinion of counsel for the Underwriter a Prospectus is may be required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if Act; whenever it is necessary to amend or supplement the Prospectus to comply with make the Securities Act statements therein not misleading, furnish, without charge to you as the Representative, either amendments to the Prospectus or any other lawsupplemental information, so that the Company, at its own expense, statements in the Prospectus as so amended or supplemented will forthwith prepare not be misleading; and file with the Commission an appropriate a post-effective amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units Registration Statement whenever such an amendment may be soldrequired and furnish, without chargecharge to you, a reasonable number of copies thereofof any such amendment and related Prospectus.
(d) Not later than the 45th day following the end of the fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders and deliver to you an earnings statement (which need not be audited) covering a period of at least 12 months beginning not earlier than the Effective Date which shall satisfy the provisions of Section 11(a) of the Act and/or Rule 158 promulgated under the Act.
(e) The Company will furnish to you copies of the Registration Statement (two of which will be signed and will include all exhibits thereto), each preliminary prospectus, the Prospectus, all amendments of and supplements to such documents, and all correspondence between the Commission and the Company or its counsel or accountants relating thereto, in each case as soon as available and in such quantities as you may reasonably request.
(f) For a period of three years from the date of the Prospectus, the Company will deliver to you (i) within 90 days after the end of each fiscal year, consolidated balance sheets, statements of income, statements of cash flow and statements of changes in stockholders' equity of the Company and its consolidated subsidiaries, if any, as at the end of and for such year and the last preceding year, all in reasonable detail and certified by independent accountants, (ii) within 45 days after the end of each of the first three quarterly periods in each fiscal year, unaudited consolidated balance sheets and statements of income, statements of cash flow and statements of changes in stockholders' equity of the Company and its consolidated subsidiaries, if any, as at the end of and for such period, all in reasonable detail, (iii) as soon as available, all such proxy statements, financial statements and reports as the Company shall send or make available to its stockholders or the stockholders of any subsidiary any of whose stock is owned by any person other than the Company or any subsidiary, and (iv) copies of all annual or periodic reports as the Company or any subsidiary shall file with the Commission as required by the Act, the Exchange Act and any rules or regulations thereunder, which are available for public inspection at the Commission, or any material reports filed in connection with the Company's listing on any stock exchange.
(g) The Company will apply the net proceeds from the sale of the Stock sold by it in the manner set forth in the Prospectus, and will comply with any reporting obligations as may be required by Rule 463 under the Act.
(h) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A promulgated under the Act, then immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) promulgated under the Act, copies of an amended Prospectus or, if required by such Rule 430A, a post-effective amendment (including an amended Prospectus), containing all information so omitted.
(i) The Company will file with the NASD all documents and notices required of companies that have issued securities that are traded on the OTCBB.
(j) The Company will cooperate with you and your counsel to qualify the Stock for sale under the securities or Blue Sky laws of such jurisdictions within the United States as you designate, including furnishing such information and executing such instruments as may be required, and will continue such qualifications in effect for a period of at least three months from the date hereof; provided, however, the Company shall not be required to register or qualify as a foreign corporation or as a dealer in securities nor, except as to matters and transactions relating to the offer and sale of the Stock, consent to a service of process in any jurisdiction.
(k) For a period of 180 days from the time of the public offering of the Stock by the Underwriters, the Company will not, except with your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Common Stock or securities convertible into Common Stock for cash, except pursuant to the exercise of any outstanding stock options of the Company that are described in the Prospectus or to employee benefit plans of the Company or its subsidiaries, provided, that the Company will not grant options to purchase shares of Common Stock under any employee benefit plan at a price less than the public offering price.
(l) The Company and its subsidiaries will remain in compliance with the financial record-keeping requirements and internal accounting control requirements of Section 13(b)
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Financial Partners Inc)
Covenants of the Company. The Company covenants and ------------------------ agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in your judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the applicable period referred to in Section 10(a)(3) of the Act or Rule 174 of the Prospectus (Rules and Regulations during which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after the applicable time period, the Company upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act and Rule 174 of the Rules and Regulations, as applicable.
(d) As soon as practicable, but not later than 45 days (or 90 days if such quarter is the fiscal year end) after the end of the first quarter ending after one year following the effective date of the Registration StatementStatement (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the applicable period referred to in Section 10(a)(3) of the Act or Rule 174 of the Rules and Regulations, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act and the Rules and Regulations.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky and Canadian securities laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares, except that the Company will not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering; sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years after the date of this Agreement, the Company will furnish to the Underwriter Representatives and their counsel and, upon request of the Representatives, to each Selected Dealer through whom Units of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without your prior written consent (which consent may be soldwithheld at your sole discretion), without chargethe Company will not, other than as disclosed in the Prospectus, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security of the Company, except, in each case, to grant options or to sell shares of Common Stock pursuant to the Company's 1996 Equity Participation Plan or the Company's Employee Stock Option Plan, each as described in the Prospectus, to grant options or to sell shares of Common Stock in connection with the offering and sale of the Notes or to grant options or to sell or issue shares of Common Stock in connection with the Merger Agreement.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it in accordance with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) As necessary, the Company will use its best efforts to qualify or register its Common Shares for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California and the provincial laws of Canada as specified by the Representatives (and thereby permit market making transactions and secondary trading in the Company's Common Shares in California and such Canadian provinces as specified by the Representatives), will comply with such Blue Sky or Canadian provincial laws and continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(k) The Company will use its best efforts to continue the quotation of the Common Shares as a national market system security on the Nasdaq National Market.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a reasonable number registrar (which may be the same entity as the transfer agent). You, on behalf of copies thereofthe Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below6(e), of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as McKinnon & Company, Inc. ____________ ___, 2001 Page 7 then amended or supplementedox xxxxxemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof. McKinnon & Company, Inc. ____________ ___, 2001 Page 8
(x) If required, the Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(i) Neither the Company nor the directors of the Company will sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock, except pursuant to this Agreement, for a period of ___ days after the date of the commencement of the Public Offering, without your prior written consent.
Appears in 1 contract
Sources: Underwriting Agreement (Millennium Bankshares Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatthat it will:
6.01. The Company will endeavor to cause the Registration Statement to become effective (a) Notify Xxxxxx immediately, and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice notice in writing writing, (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within event shall have occurred during the period commencing on the date hereof and ending on the Final Closing Date, as a result of time referred to in Section 6.03 below, which the Offering Documents would include any untrue statement of the happening of any event that makes any statement made in the Registration Statement a material fact or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) of the receipt of any notification with respect to the modification, rescission, withdrawal, or suspension of the qualification or registration of the Securities, or of an exemption from such registration or qualification, in any jurisdiction. The Company will use its best efforts to prevent the issuance of any such modification, rescission, withdrawal, or suspension and if Xxxxxx so request, to obtain the lifting thereof as promptly as possible.
(b) Not make any supplement or amendment to the Offering Documents unless such supplement or amendment complies with the requirements of the Act and Regulation D and the applicable federal and/or state securities and “blue sky” laws and unless Xxxxxx shall have approved of such supplement or amendment in writing. If, at any time during the period commencing on the date hereof and ending on the Final Closing Date, any event shall have occurred as a result of which the Offering Documents contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or if, in the opinion of counsel to the Company or counsel to the Placement Agent, it is necessary at any time to supplement or amend or supplement the Prospectus Offering Documents to comply with the Securities Act Act, Regulation D, or any applicable securities or “blue sky” laws, the Company will promptly prepare an appropriate supplement or amendment (in form and substance satisfactory to Xxxxxx) which will correct such statement or omission or which will effect such compliance.
(c) Deliver without charge to the Placement Agent such number of copies of the Offering Documents and any supplement or amendment thereto as may reasonably be requested by the Placement Agent.
(d) Not, directly or indirectly, solicit any offer to buy from, or offer to sell to any person any Securities, except through the Placement Agent.
(e) Use its best efforts to qualify the Securities for offering and sale under, or establish an exemption from such qualification or registration under, the securities or “blue sky” laws of the jurisdictions as may be required by the Placement Agent; provided, however, that the Company will not be obligated to qualify to do business as a dealer in securities in any jurisdiction in which it is not so qualified. The Company will not consummate any sale of Securities in any jurisdiction or in any manner in which such sale may not be lawfully made; in this regard the Company shall be entitled to rely on the Placement Agent’s representations herein, and the representations of Prospective Investors in the Subscription Agreement and on the Blue Sky qualifications affected by the Placement Agent’s counsel.
(f) At all times during the period commencing on the date hereof and ending on the Final Closing Date, provide to each Prospective Investor or his Purchaser Representative (as defined in Regulation D), if any, on request, such information (in addition to that contained in the Offering Documents) concerning the Offering, the Company and any other lawrelevant matters, as it possesses or can acquire without unreasonable effort or expense, and to extend to each Prospective Investor or his Purchaser Representative, if any, the opportunity to ask questions of, and receive answers from, the President or other Executive Officers of the Company concerning the terms and conditions of the Offering and the business of the Company and to obtain any other additional information, to the extent it possesses the same or can acquire it without reasonable effort or expense, as such Prospective Investor or Purchaser Representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such Prospective Investor or Purchaser Representative, as the case may be.
(g) Provide to each Prospective Investor or his Purchaser Representative any information required to be delivered by Rule 502(b) of Regulation D.
(h) Disclose to each Prospective Investor, in writing, any material relationship between such Prospective Investor’s Purchaser Representative, if any, or its affiliates, on the one hand, and the Company or its affiliates, on the other hand, which, to the knowledge of the Company, then exists or is understood to be contemplated or has existed at its own expenseany time during the previous two years and any compensation received or to be received as a result of such relationship.
(i) Before accepting any subscription to purchase Securities from, will forthwith prepare or making any sale to, any Prospective Investor, have reasonable grounds to believe (relying upon the information provided pursuant to the Subscription Agreements that (A) such Prospective Investor meets the suitability requirements for investing in the Securities set forth in the Offering Documents, or (B) such Prospective Investor is an accredited investor (as defined in Regulation D).
(j) Notify Xxxxxx promptly of the acceptance or rejection of any subscription. The Company shall not (i) accept subscriptions from, or make sales of Securities to, any Prospective Investors who are not, to the Company’s knowledge, accredited investors, or (ii) unreasonably reject any subscription for Securities.
(k) Cooperate with Placement Agent’s counsel to file five copies of a Notice of Sales of Securities on Form D with the Securities and file Exchange Commission (the “Commission”) no later than 15 days after the first sale of the Securities, and/or such documents or certificates as are required by any particular state “blue sky” law. In the event that Company counsel effects the filing of a Form D with the Commission an appropriate amendment and the “blue sky” filings required by the securities laws of any state, the Company or supplement theretoits counsel shall promptly deliver a copy of such filings i to the Placement Agent and its counsel. The Company shall file promptly such amendments to such Notice on Form D as shall become necessary and, as requested by Xxxxxx, shall also comply with any filing requirement imposed by the laws of any state or jurisdiction in which offers and sales are made. The Company shall furnish Xxxxxx with copies of all such filings.
(l) Not, directly or indirectly, engage in any act or activity which may jeopardize the status of the offering and sale of the Securities as exempt transactions under the Act or under the securities or “blue sky” laws of any jurisdiction in which the Offering maybe made. Without limiting the generality of the foregoing, and will furnish notwithstanding anything contained herein to the Underwriter contrary, the Company shall not, directly or indirectly, engage in any offering of securities which, if integrated with the Offering in the manner prescribed by Rule 502(a) of Regulation D and each Selected Dealer through whom Units applicable releases of the Commission, may jeopardize the status of the offering and sale of the Securities as exempt transactions under Regulation D.
(m) Apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Memorandum.
(n) Not, during the period commencing on the date hereof and ending on the Final Closing Date, issue any press release or other communication, or hold any press conference with respect to the Company, its financial condition, results of operations, business, properties, assets, or liabilities, or the Offering, without Xxxxxx’ prior written consent, except as required by applicable securities laws and except as may be related to the marketing and sale of its products in the normal course of business.
(o) Provide each Prospective Investor with a full executed registration rights agreement which agreement will provide that the Company shall file a registration statement (the “Registration Statement”) with the SEC within 60 days of the Final Closing of the Offering to provide for the resale of the shares of Common Stock issuable pursuant to the Preferred Shares, Warrants and Agent Warrants. The Company shall use its best efforts to obtain an order of effectiveness from the SEC declaring the registration statement effective as soon as reasonably possible, but in no event later than 120 days from the filing date and to maintain the effectiveness of such registration statement until the date which is the earlier of (i) such time as all of the shares registered thereunder have been publicly sold, without chargeor (ii) at such time as all of such shares may be sold pursuant to Rule 144(b). The agreement shall also provide that the failure to file the registration statement as contemplated herein or otherwise comply with its obligations thereunder shall result in a two (2%) percent per month, pro-rated daily, penalty on the subscription price payable in cash or through the issuance by the Company to each investor of additional shares of Common Stock and an additional two (2%) percent penalty for each 30 days period thereafter up to a reasonable number maximum of copies thereofeight such 30-day periods.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) After the date hereof, the Company will not at any time, whether before or after the Effective Date, file any amendment to the Registration Statement or the Prospectus, or any supplement to the Prospectus, of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative or the Underwriters' counsel shall have reasonably objected in writing on the ground that it is not in compliance with the Act or the rules and regulations promulgated thereunder.
(b) The Company will endeavor use its best efforts to cause the Registration Statement to become effective (provided, however, the Company shall not cause the Registration Statement to become effective without the written consent of Xxxxxxxxx) and will advise the Underwriter promptly andRepresentative, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has shall have become effective and when any amendment thereto thereafter becomes shall have become effective, and when any amendment of or supplement to the Prospectus shall be filed with the Commission, (ii) of any request by when the Commission shall make request or suggestion for amendments or supplements any amendment to the Registration Statement or the Prospectus or for additional informationinformation and the nature and substance thereof, and (iii) of the issuance by the Commission of any stop an order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for that purpose, and will use its best efforts to prevent the issuance of such purposes and (iv) within the period of time referred to in Section 6.03 belowan order, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to if such an order shall be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementissued, the Company will make every reasonable effort to obtain the withdrawal of such order thereof at the earliest possible timemoment.
6.02. (c) The Company will not prepare and file any amendment with the Commission, promptly upon the request of the Representative, such amendments, or supplements to the Registration Statement or make any amendment or supplement Prospectus, in form and substance satisfactory to counsel to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to timeCompany, for such period as in the written reasonable opinion of Xxxxxx Xxxxx P.C., as counsel for to the Underwriter a Prospectus is required by law to Underwriters, may be delivered necessary or advisable in connection with sales the offering or distribution of the Units, and will diligently use its best efforts to cause the same to become effective.
(d) The Company will, at its expense, when and as requested by an Underwriter the Representative, supply all necessary documents, exhibits and information, and execute all such applications, instruments and papers as may be required, in the opinion of the Underwriters' counsel, to qualify the Units or such part thereof as the Representative may determine, for sale under the so-called "blue sky" laws of such states as the Representative shall designate, and to continue such qualification in effect so long as required for the purposes of the distribution of the Units, provided, however, that the Company shall not be required to qualify as a Selected Dealerforeign corporation or dealer in securities or to file a consent to service of process in any state in any action other than one arising out of the offering or sale of the Units.
(e) The Company will, at its own expense, file and provide, and continue to file and provide, such reports, financial statements and other information as may be required by the Commission, or the proper public bodies of the states in which the Units may be qualified for sale, for so long as required by applicable law, rule or regulation and will provide the Representative with copies of all such registrations, filings and reports on a timely basis.
(f) So long as Xxxxxxxxx is a market maker of the Company's Securities, the Company will deliver to the Underwriter Xxxxxxxxx a copy of each annual report, proxy statement, information statement and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment news release of the Company, and will deliver to Xxxxxxxxx (i) within 50 days after the end of each of the Company's first three quarter-yearly fiscal periods, a balance sheet of the Company as at the end of such quarter-yearly period, together with a statement of its income and a statement of changes in its cash flow for such period (Form 10-QSB or Form 10-Q), all in reasonable detail, signed by its principal financial or accounting officer, (ii) within 105 days after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with a statement of its income and statement of cash flow for such fiscal year (Form 10-KSB or Form 10-K), such balance sheet and statement of cash flow for such fiscal year to be in reasonable detail and to be accompanied by a certificate or report of independent public accountants, (who may be the regular accountants for the Company), (iii) as soon as available a copy of every other report (financial or other) mailed to the stockholders, and (iv) as soon as available a copy of every non-confidential report and financial statement furnished to or filed with the Commission or with any securities exchange pursuant to requirements by or agreement with such exchange or the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any regulations of the Commission thereunder.
(g) The Company represents that with respect to the Warrants and the shares of Common Stock included in the opinion of counsel for Units, it will prepare and file a Registration Statement with the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplementedCommission pursuant to Section 12(g) in order to make the statements therein, in light of the circumstances under which they were made1934 Act, not misleadingprior to the Effective Date with a request that such Registration Statement will become effective on the Effective Date. The Company understands that, or if to register, it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith must prepare and file with the Securities and Exchange Commission an appropriate amendment a General Form of Registration of Securities (Form 8-A or supplement theretoForm 10). In addition, the Company agrees to qualify its Units, Common Stock and the Warrants for listing on the Nasdaq system and Boston Stock Exchange on the first trading date of each respective security and will furnish take all reasonable and necessary and appropriate action so that the securities continue to be listed for trading in the Underwriter Nasdaq system and each Selected Dealer through whom Boston Stock Exchange for at least five years from the Effective Date provided the Company otherwise complies with the prevailing maintenance requirements. In addition, at such time as the Company qualifies for listing its securities on the National Market System of Nasdaq, the Company will use its best efforts to have the Company's Units may be sold, without charge, a reasonable number and components thereof listed on the National Market System of copies thereof.Nasdaq in lieu of listing as Small-Cap Issues on
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission or any other government agency or authority of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in your reasonable judgment may be necessary or advisable to enable the Underwriter to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time during which a prospectus relating to the Common Shares is required to be delivered under the Act or the Prospectus (Rules and Regulations any event occurs, as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or therein, in light of the necessity circumstances then existing, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or any other law. If the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at any time its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the Commission shall issue any stop order suspending same to become effective as soon as possible.
(d) As soon as practicable, but not later than 45 days after the effectiveness end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, will forthwith furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) The Company shall promptly prepare and file with the Commission Commission, from time to time, such reports as may be required to be filed by the Act and the Exchange Act including, without limitation, reports with respect to the sale of the Common Shares and the application of the proceeds thereof as may be required in accordance with Rule 463 under the Act.
(h) During the period of five years hereafter, the Company will furnish to you: (i) at the same time as such are furnished to its Stockholders generally, copies of the Annual Report of the Company containing the consolidated balance sheet of the Company and the Subsidiaries as of the close of such fiscal year and consolidated statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock; (iv) as soon as practicable after the filing thereof, of each non-confidential report or other statement or document filed by the Company with the Commission, or with any national securities exchange or quotation system on which any securities of the Company may be listed or quoted; and (v) from time to time, such other non-confidential information concerning the Company as you may reasonably request.
(i) The Company will use its best efforts to effect and maintain the quotation of the Common Shares on the Nasdaq Stock Market and to file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(j) The Company will refrain during a period of 120 days after the date of the Prospectus, without the prior written consent of Friedman, Billings, Xxxxxx & Co., Inc. ("FBR"), from (i) offering, pledging, selling, contracting to sell, or selling any option, warrant, or contract to purchase, purchasing any option, warrant, or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock or any security convertible into or exchangeable for Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The Company shall also cause each executive officer and director of the Company (including Xxxxxx X. Xxxxx) to furnish to the Representatives, on or prior to the date hereof, a letter or letters, in form and substance satisfactory to counsel for the Representatives, pursuant to which each such person or entity shall agree to abide by the aforementioned restrictions, unless they have received prior written consent from FBR, for a period of 120 days from the date of the Prospectus. The foregoing sentence shall not apply to (A) the Common Shares to be sold hereunder; (B) any shares of Common Stock issued by the Company upon the exercise of an appropriate amendment option outstanding on the date hereof and referred to in the Prospectus; or supplement (C) any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock issued in connection with a merger, acquisition of another entity, acquisition of assets or any other similar transaction.
(k) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(l) The Company will not distribute prior to the First Closing Date any offering material in connection with the offering and sale of the Common Shares other than the Preliminary Prospectus, the Prospectus, the Registration Statement and the other materials permitted by the Act.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(n) The Company shall pay all expenses, fees, and taxes (other than any transfer taxes and the fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof and clauses (iii) and (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and will furnish the printing and furnishing of copies of each thereof to the Underwriter Underwriters and each Selected Dealer through whom Units may be soldto dealers (including costs of mailing and shipment), without charge(ii) the preparation, a reasonable number issuance, and delivery of the certificates for the Common Shares to the Underwriters, including any stock or other transfer taxes or duties payable upon the sale of the Common Shares to the Underwriters, (iii) the word processing and/or printing of this Agreement and any dealer agreements, and the reproduction and/or printing and furnishing of copies thereofthereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) filing fees for the qualification of the Common Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any filing for review of the public offering of the Common Shares by the NASD, (vi) the fees and expenses of any transfer agent or registrar for the Common Shares, (vii) the fees and expenses incurred in connection with the inclusion of the Common Shares in the Nasdaq Stock Market, and (viii) the performance of the Company's other obligations hereunder
(o) The Company will not rely upon the Representatives or legal counsel for the Representatives for any legal, tax or accounting advice in connection with the Offering. You may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the Underwriter thatUnderwriters as follows:
6.01(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Representation Date, and any amendment thereof, to become effective, as promptly as possible after the filing thereof. The Company will endeavor not file any amendment to cause the Registration Statement or any amendment or supplement to the Prospectus to which the Underwriters shall reasonably object in writing after a reasonable opportunity to review such amendment or supplement. Subject to the foregoing sentences in this clause (a), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or supplement to the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, or such supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriters of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing Underwriters (i) when the Registration Statement has become Statement, if not effective at the Representation Date, and when any amendment thereto thereafter becomes thereto, shall have become effective, (ii) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the Commission for amendments or supplements the
(b) If, at any time when a prospectus relating to the Registration Statement Shares is required to be delivered under the Act or the Prospectus or for additional informationAct Regulations, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or occurs as a result of which the Prospectus (as then amended or supplemented) supplemented would contain any untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is shall be necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the Securities Act or any other lawthe Act Regulations, the Company, at its own expense, Company promptly will forthwith prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 3, an appropriate amendment or supplement theretothat will correct such statement or omission or effect such compliance. Neither your consent to, nor your delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6.
(c) The Company consents to the use of the Prospectus in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Shares are offered by the Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with the sales by any Underwriter or dealer. The Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, so far as necessary to permit the continuance of sales of or dealing in the Shares in accordance with the provisions hereof and the Prospectus.
(d) As soon as practicable, the Company will make generally available to its securityholders and to the Underwriters a consolidated earnings statement or statements of the Company and the Subsidiaries covering a twelve- month period beginning after the Effective Date that will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act Regulations.
(e) The Company will furnish to the Underwriter and each Selected Dealer through whom Units may be soldRepresentatives, without charge, three signed copies of the Registration Statement (including exhibits thereto and all documents incorporated by reference therein) and, so long as delivery of a reasonable number prospectus by an Underwriter or dealer may be required by the Act or the Act Regulations, as many copies of copies thereofthe Prospectus and all amendments and supplements thereto as the Underwriters may reasonably request.
(f) During the period of five years hereafter, the Company will furnish to you, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to you (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under Exchange Act or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as you may reasonably request, provided that prior to the Company's furnishing any such other information that is nonpublic you shall enter into such agreement respecting the confidentiality thereof as the Company may reasonably request.
(g) The Company will not, and will cause each of its executive officers and directors to enter into agreements with the Underwriters in the form set forth in Exhibit A to the effect
(h) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(i) The Company will not at any time, directly or indirectly, take any action intended, or that might reasonably be expected, to cause or result in, or that will cause, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(j) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in accordance with the description set forth in the "Use of Proceeds" section of the Prospectus.
(k) The Company will cooperate with the Underwriters and their counsel in connection with endeavoring to obtain and maintain the qualification or registration, or exemption from qualification, of the Shares for offer and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(l) The Company will cause the Shares to be duly listed on the Nasdaq National Market.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01(a) The Company will cause the Prospectus (or, if permitted by Rule 424(c) under the Act, the prospectus supplement relating to the Securities that forms a part thereof), properly completed, to be filed with the Commission pursuant to Rule 424(b)(2) (or, if applicable and consented to by you, Rule 424(b)(5)) within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments proposal to amend or supplements to supplement the Registration Statement or the Prospectus or for additional information, (iii) other than a supplement relating solely to an offering of securities other than the Securities); the Company will also advise you promptly of the issuance filing of any such amendment or supplement, and of the institution by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale proceedings in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, and will use its best efforts to prevent the Company will make every reasonable effort issuance of any such stop order and to obtain the withdrawal of such order at the earliest as soon as possible timeits lifting if issued.
6.02. The Company will not file (b) If at any amendment time when a prospectus relating to the Registration Statement or make Securities is required to be delivered under the Act any amendment or supplement to the Prospectus event occurs as a result of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order supplemented would include an 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 it is necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Securities Act or any other lawAct, the Company, at its own expense, Company promptly will forthwith prepare and file with the Commission an appropriate amendment or supplement theretothat will correct such statement or omission or an amendment that will effect such compliance. The expense of complying with the requirements of this Section 5(b) shall be borne (a) during the period of nine months after the date of this Agreement, by the Company, and (b) after the expiration of such nine-month period, by you, if you request copies of the Prospectus or of an amendment or amendments of or a supplement or supplements to the Prospectus.
(c) As soon as practicable but in no event later than 16 months after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement or statements of the Company and its subsidiaries that will satisfy the 5 5 provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to you copies of the Registration Statement (including all exhibits), each related preliminary prospectus, the Prospectus and all amendments and supplements to such documents, in each case as soon as available in such quantities as you request (and will make available to your counsel a manually executed copy of the Registration Statement and manually executed copies of all amendments thereto to the extent not previously furnished to such counsel, in each case with all exhibits).
(e) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(f) During the period of two years hereafter, and if not publicly available through the Commission's website, the Company will furnish to you from time to time, such information concerning the Company as you may reasonably request.
(g) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will furnish to reimburse you for any expenses (including fees and disbursements of counsel) incurred by you in connection with qualification of the Underwriter Securities for sale and each Selected Dealer determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of memoranda relating thereto and for any fees charged by investment rating agencies for the rating of the Securities.
(h) From the date of this Agreement through whom Units may be soldthe close of business on the Closing Date, the Company will not, without chargeyour prior consent, offer or sell (other than upon exercise of warrants therefor), [
(i) any of its unsubordinated debt securities having a reasonable number maturity of copies thereofseven years or more or (ii) any of its subordinated debt securities (regardless of maturity) other than the Securities.] 6 6
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:: ------------------------
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to the Underwriters of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice Underwriters in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which the Underwriters have not been furnished with a copy a reasonable time prior to such filing or to which the Underwriters reasonably object in writing or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon the Underwriters' request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in the Underwriters' judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in Section 10(a)(3) of the Act during which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise the Underwriters thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after such nine-month period, the Company, upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretonine-month period referred to in Section 10(a)(3) of the Act, and will furnish to the Underwriter Underwriters or mail copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each Selected Dealer through whom Units case as soon as available and in such quantities as the Underwriters may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with the Underwriters and their counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as the Underwriters designate and under Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Underwriters promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or overt threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with the Underwriters' cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report to Shareholders of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days from the date of the Prospectus, without the prior written consent of either Xxxxxxxxxx Securities or the Underwriters acting jointly (the giving or withholding of such written consent being in the sole discretion of Xxxxxxxxxx Securities, or the Underwriters acting jointly, as the case may be), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security, except for (i) the grant of options in the ordinary course of business pursuant to existing stock option plans described in the Prospectus, or (ii) the issuance of shares of Common Stock pursuant to the exercise of director, officer or employee stock options that are disclosed in the Registration Statement or Prospectus and are outstanding on the date of the Prospectus.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus and will file with the Commission, and deliver copies thereof to the Representatives upon any such filing, such reports on Form SR as may be soldrequired pursuant to Rule 463 under the Act.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), without chargewill comply with such Blue Sky laws and will use its best efforts to maintain such qualifications, registrations and exemptions in effect for a reasonable number period of copies thereoffive years after the date hereof.
(k) The Company will use its best efforts to designate the Common Stock for quotation as a National Market System security on the NASD Automated Quotation System. The Representatives may, in their sole discretion and on behalf of the Underwriters, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Sources: Underwriting Agreement (Jones Education Networks Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. The (a) On or before the Closing Date, and to the extent known by the Company, after due inquiry, the Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter Selling Agent promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares, Warrants or Warrant Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise the period Selling Agent promptly of time referred to in Section 6.03 below, any request of the happening Commission for amendment or supplement of any event that makes any statement made in the Registration Statement or the Prospectus or for additional information.
(as then amended b) On or supplemented) untrue in before the Closing Date, the Company will give the Selling Agent notice of its intention to file or prepare any material respect or that requires the making of any addition post-effective amendment to or change in the Registration Statement or any amendment or supplement to the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make and will furnish the statements therein not misleading or Selling Agent with copies of the necessity to amend any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement to which the Selling Agent or its counsel shall reasonably object.
(c) The Company will (i) file with the Commission the Prospectus (as then amended or supplementedin accordance with Rule 424(b) to comply with of the Securities Act and (ii) provide the Selling Agent and its counsel, without charge, with copies of the Prospectus, in such numbers as the Selling Agent and its counsel may reasonably request and enough time in advance such that the Prospectus can be delivered to purchasers of the Shares and Warrants by such time as is required by the federal securities laws. The Company will also deliver to the Selling Agent such number of copies of the Securities Purchase Agreement as the Selling Agent may reasonably request.
(d) The Company shall use its reasonable best efforts to keep the Registration Statement with respect to the Warrant Shares in effect until the expiration date of the Warrants or any other law. If at any time such shorter period that will terminate when all the Commission Warrants have been exercised and during such period shall issue use its reasonable best efforts to obtain the prompt withdrawal of any stop order suspending the effectiveness of the Registration Statement, . If at any time after the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment Closing Date when a prospectus relating to the Registration Statement or make Shares, Warrants and Warrant Shares is required to be delivered under the Securities Act any amendment or supplement to the Prospectus event occurs as a result of which the Underwriter shall not have been advised previously Prospectus, including any amendments or supplements, would include an untrue statement of a material fact, or omit to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is state any material fact required by law to be delivered in connection with sales by an Underwriter stated therein or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus supplements thereto, to comply with the Securities Act or any other lawAct, the CompanyCompany promptly will advise the Selling Agent thereof and, at its own expensesubject to Section 3(b), will forthwith promptly prepare and file with the Commission an appropriate amendment or supplement theretothat will correct such statement or omission or an amendment that will effect such compliance;
(e) The Company will cooperate with the Selling Agent in qualifying or registering the Shares, Warrants and Warrant Shares for sale under the blue sky laws of such jurisdictions as the Selling Agent reasonably designates, and will furnish continue such qualifications in effect so long as reasonably required for the distribution of the Shares, Warrants and Warrant Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would become subject to taxation as a foreign corporation.
(f) The Company will use the net proceeds received by it from the sale of the Shares and any Warrants and the issuance of any Warrant Shares in the manner specified under the caption “Use of Proceeds” in the prospectus supplement relating to the Underwriter Shares, Warrants and each Selected Dealer through whom Units may be sold, without charge, Warrant Shares that forms a reasonable number part of copies thereofthe Prospectus.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its reasonable best efforts to cause the Registration Statement to become effective and will advise you immediately, and confirm the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing writing, (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for that purpose. If the Commission shall enter any such purposes and (iv) within stop order at any time, the period Company will use its reasonable best efforts to obtain the lifting of time referred such order at the earliest possible moment. The Company will not file any amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance in all material respects with the Act and the Rules and Regulations.
(as then amended or supplementedb) untrue in If at any material respect or that requires time within nine months of the making effectiveness of any addition to or change in the Registration Statement when a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case you or any Underwriter, as the case may be, is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at your expense or the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) Prior to the Second Closing Date, the Company will not repurchase or otherwise acquire any of the Company's Common Stock or declare or pay any dividend or make any other law. If at any time distribution upon its Common Stock.
(d) As soon as practicable, but not later than 45 days after the Commission shall issue any stop order suspending end of the effectiveness first quarter ending after one year following the effective date of the Registration Statement, the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretofirst nine months after the effective date of the Registration Statement, and will furnish to you or mail to your order copies of the Underwriter Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each Selected Dealer through whom Units case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to list the Common Shares for trading on the Chicago Stock Exchange and qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will use its best efforts to comply with such laws and use its best efforts to continue such listing, qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its reasonable best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to you or upon your request as Representative of the Underwriters, to each of the other Underwriters, as the case may be: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and changes in financial position for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10-QSB, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days after the date hereof, without your prior written consent, individually or as Representative of the Underwriters, the Company will not other than pursuant to outstanding stock options and the terms of other employee benefit plans disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable for its Common Stock or other equity security under circumstances where such securities may be soldsold into the public market during such period. You, without chargeindividually or on behalf of the Underwriters, a reasonable number as the case may be, may, in your sole discretion, waive in writing the performance by the Company of copies thereofany one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (United Financial Mortgage Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. The Company will endeavor to cause (a) Not later than the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerClosing Date, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may Underwriters a conformed copy of the Registration Statement in the form that it or the most recent post-effective amendment thereto became effective, certified by an officer of the Company to be sold, without charge, in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and of any amendment amendments or supplement supplements thereto) as they the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with the Commission pursuant to and in compliance with Rule 424(b) and will advise BNY Capital Markets, Inc. and J.P. Morgan Securities Inc., as representatives of xxx Xxxxxxxiters, promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which the Company shall have received notice. The Company consents will use its best efforts to prevent the use of such Prospectus (and issuance of any amendment or supplement theretosuch stop order and to secure the prompt removal thereof if issued.
(d) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for During such period of time thereafter as the Prospectus is Underwriters are required by law to be delivered in connection therewith. If during such period of time deliver a prospectus after this Underwriting Agreement has become effective, if any event shall occur that in the judgment of relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of counsel for the Underwritercircumstances when it is delivered to a purchaser of the Bonds, requires that the Company will amend or supplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the Exchange Act which will supplement or amend the Prospectus, so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other lawrequirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture, (iii) legal counsel relating to the qualification of the Bonds under the blue sky laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the Companypreliminary (and any supplemental) blue sky survey, at its own expense, will forthwith prepare any preliminary prospectus supplement relating to the Bonds and file with the Commission an appropriate Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies, (vi) the listing of the Bonds on the New York Stock Exchange (the "NYSE") and (vii) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will furnish reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriter Underwriters for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional Mortgage Bonds without the consent of BNY Capital Markets, Inc. and each Selected Dealer through whom Units may J.P. Morgan Securities Inc., as representatives of xxx Xxxxxxxiters, until the earlier to occur of (i) the Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be soldfurnished to the Underwriters a supplemental opinion of counsel for the Company, without chargeaddressed to the Underwriters, a reasonable number of copies thereofstating that all such recordings, registrations and filings have been made.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor to cause advise you and the Registration Statement to become effective and will advise the Underwriter Selling Stockholders promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) its notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification to it of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you and the period Selling Stockholders promptly of time referred to in Section 6.03 belowany request of the Commission for amendment or supplement of the Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information.
(b) The Company will give you and the Selling Stockholders notice of its intention to file or prepare any event that makes any statement made in amendment to the Registration Statement (including any post-effective amendment) or any Rule 462(b) Registration Statement or any amendment or supplement to the Prospectus (as then amended or supplemented) untrue including any revised prospectus which the Company proposes for use by the Underwriters in any material respect or that requires connection with the making offering of any addition to or change in the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) and any term sheet as contemplated by Rule 434) and will furnish you and the Prospectus Selling Stockholders with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which you or counsel for the Underwriters shall reasonably object on a timely basis.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the Company will prepare a term sheet that complies with the requirements of Rule 434. If the Company elects not to rely on Rule 434, the Company will provide the Underwriters with copies of the form of prospectus, in such numbers as then amended the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the 1933 Act by the close of business in New York City on the second business day immediately succeeding the date of the Pricing Agreement. If the Company elects to rely on Rule 434, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus,
(d) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act any event occurs as a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the Company, at its own expense, Company promptly will forthwith advise you thereof and will promptly prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(e) Without the prior written consent of the Underwriters, neither the Company nor any of its subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(f) Except for repurchase by the Company of its capital stock from employees whose employment may terminate, neither the Company nor any of its subsidiaries will acquire any capital stock of the Company prior to the earlier of the Second Closing Date or termination or expiration of the related option nor will the Company declare or pay any dividend or make any other distribution upon the Common Stock payable to stockholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except in either case as contemplated by the Prospectus.
(g) The Company will make generally available to its security holders as soon as reasonably practicable, and in any event not later than 15 months after the effective date of the Registration Statement, a consolidated earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act and Rule 158.
(h) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense, subject to the provisions of subsection (d) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you reasonably designate, and will furnish continue such qualifications in effect so long as reasonably required for the distribution of the Shares.
(j) The Company will use the net proceeds received by it from the sale of the Shares being sold by it in the manner specified in the Prospectus in all material respects.
(k) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434, then following the execution of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to the Underwriter Registration Statement (including an amended prospectus), containing all information so omitted. If required, the Company will prepare and each Selected Dealer through whom Units may be soldfile, without chargeor transmit for filing, a reasonable number Rule 462(b) Registration Statement not later than the date of copies thereofthe execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(l) The Company will comply with all applicable registration, filing and reporting requirements of the Exchange Act and the New York Stock Exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its reasonable best efforts to cause the Registration Statement to become effective and will advise you immediately, and confirm the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing writing, (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for that purpose. If the Commission shall enter any such purposes and (iv) within stop order at any time, the period Company will use its reasonable best efforts to obtain the lifting of time referred such order at the earliest possible moment. The Company will not file any amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance in all material respects with the Act and the Rules and Regulations.
(as then amended or supplementedb) untrue in If at any material respect or that requires time within nine months of the making effectiveness of any addition to or change in the Registration Statement when a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an unture statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case you or any Underwriter, as the case may be, is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at your expense or the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a) (3) of the Act.
(c) Prior to the Second Closing Date, the Company will not repurchase or otherwise acquire any of the Company's Common Stock or declare or pay any dividend or made any other law. If at any time distribution upon its Common Stock.
(d) As soon as practicable, but not later than 45 days after the Commission shall issue any stop order suspending end of the effectiveness first quarter ending after one year following the effective date of the Registration Statement, the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretofirst nine months after the effective date of the Registration Statement, and will furnish to you or mail to your order copies of the Underwriter Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each Selected Dealer through whom Units case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to list the Common Shares for trading on the Chicago Stock Exchange and qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will use its best efforts to comply with such laws and use its best efforts to continue such listing, qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its reasonable best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to you or upon your request as Representative of the Underwriters, to each of the other Underwriters, as the case may be: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and changes in financial position for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10-QSB, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days after the date hereof, without your prior written consent, individually or as Representative of the Underwriters, the Company will not other than pursuant to outstanding stock options and the terms of other employee benefit plans disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable for its Common Stock or other equity security under circumstances where such securities may be soldsold into the public market during such period. You, without chargeindividually or on behalf of the Underwriters, a reasonable number as the case may be, may, in your sole discretion, waive in writing the performance by the Company of copies thereofany one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Sources: Underwriting Agreement (United Financial Mortgage Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you promptly of any request of the period Commission for amendment or supplement of time referred to in Section 6.03 belowthe Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information.
(b) The Company will give you notice of its intention to file or prepare any event that makes any statement made in amendment to the Registration Statement (including any post- effective amendment) or any Rule 462(b) Registration Statement or any amendment or supplement to the Prospectus (as then amended or supplemented) untrue including any revised prospectus which the Company proposes for use by the Underwriters in any material respect or that requires connection with the making offering of any addition to or change in the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) and any term sheet as contemplated by Rule 434) and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Prospectus case may be, and will not file any such amendment or supplement or use any such prospectus to which you or counsel for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the Company will prepare a term sheet that complies with the requirements of Rule 434. If the Company elects not to rely on Rule 434, the Company will provide the Underwriters with copies of the form of prospectus, in such numbers as then amended the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the 1933 Act by the close of business in New York City on the second business day immediately succeeding the date of the Pricing Agreement. If the Company elects to rely on Rule 434, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such numbers as the Underwriters may reasonably request, by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act any event occurs as a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the Company, at its own expense, Company promptly will forthwith advise you thereof and will promptly prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any capital stock of the Company prior to the earlier of the Second Closing Date or termination or expiration of the related option nor will the Company declare or pay any dividend or make any other distribution upon the Common Stock payable to stockholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except in either case as contemplated by the Prospectus.
(g) Not later than November 30, 1999 the Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense, subject to the provisions of subsection (d) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(j) During the period of five years hereafter, the Company will furnish you and each of the other Underwriters with a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD; (ii) as soon as practicable after the release thereof, of each material press release in respect of the Company; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(k) The Company will use the net proceeds received by it from the sale of the Shares being sold by it in the manner specified in the Prospectus.
(l) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434, then immediately following the execution of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to the Underwriter Registration Statement (including an amended Prospectus), containing all information so omitted. If required, the Company will prepare and each Selected Dealer through whom Units may be soldfile, without chargeor transmit for filing, a reasonable number Rule 462(b) Registration Statement not later than the date of copies thereofthe execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(m) The Company will comply with all registration, filing and reporting requirements of the Exchange Act and the Nasdaq National Market.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatthat it will:
6.01. The Company will endeavor to cause the Registration Statement to become effective (a) Notify you immediately, and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice notice in writing writing, (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within event shall have occurred during the period commencing on the date hereof and ending on the Final Closing Date, as a result of time referred to in Section 6.03 below, which the Documents would include any untrue statement of the happening of any event that makes any statement made in the Registration Statement a material fact or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) of the receipt of any notification with respect to the modification, rescission, withdrawal, or suspension of the qualification or registration of the Shares, or of an exemption from such registration or qualification, in any jurisdiction. The Company will use its best efforts to prevent the issuance of any such modification, rescission, withdrawal, or suspension and if you so request, to obtain the lifting thereof as promptly as possible.
(b) Not make any supplement or amendment to the Documents unless such supplement or amendment complies with the requirements of the Act and Regulation D and the applicable federal and/or state securities and "blue sky" laws and unless you shall have approved of such supplement or amendment in writing. If, at any time during the period commencing on the date hereof and ending on the Final Closing Date, any event shall have occurred as a result of which the Documents contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or if, in the opinion of counsel to the Company or counsel to the Placement Agent, it is necessary at any time to supplement or amend or supplement the Prospectus Documents to comply with the Securities Act Act, Regulation D, or any applicable securities or "blue sky" laws, the Company will promptly prepare an appropriate supplement or amendment (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance.
(c) Deliver without charge to the Placement Agent such number of copies of the Documents and any supplement or amendment thereto as may reasonably be requested by the Placement Agent.
(d) Not, directly or indirectly, solicit any offer to buy from, or offer to sell to any person any Shares, except through the Placement Agent.
(e) Use its best efforts to qualify or register the Shares for offering and sale under, or establish an exemption from such qualification or registration under, the securities or "blue sky" laws of such jurisdictions as you may reasonably request; provided, however, that the Company will not be obligated to qualify to do business as a dealer in securities in any jurisdiction in which it is not so qualified. The Company will not consummate any sale of Shares in any jurisdiction or in any manner in which such sale may not be lawfully made; in this regard the Company shall be entitled to rely on the Placement Agent's representations herein, and the representations of Prospective Investors in the Subscription Agreement and Purchaser Questionnaire and on the Blue Sky qualifications affected by the Placement Agent's counsel.
(f) At all times during the period commencing on the date hereof and ending on the Final Closing Date, provide to each Prospective Investor or his Purchaser Representative (as defined in Regulation D), if any, on request, such information (in addition to that contained in the Documents) concerning the Offering, the Company and any other lawrelevant matters, as it possesses or can acquire without unreasonable effort or expense, and to extend to each Prospective Investor or his Purchaser Representative, if any, the opportunity to ask questions of, and receive answers from, Xxxxx Xxxxx, President of the Company concerning the terms and conditions of the Offering and the business of the Company and to obtain any other additional information, to the extent it possesses the same or can acquire it without reasonable effort or expense, as such Prospective Investor or Purchaser Representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such Prospective Investor or Purchaser Representative, as the case may be.
(g) Provide to each Prospective Investor or his Purchase Representative any information required to be delivered by Rule 502(b) of Regulation D.
(h) Disclose to each Prospective Investor, in writing, any material relationship between such Prospective Investor's Purchaser Representative, if any, or its affiliates, on the one hand, and the Company or its affiliates, on the other hand, which, to the knowledge of the Company, then exists or is understood to be contemplated or has existed at its own expenseany time during the previous two years and any compensation received or to be received as a result of such relationship.
(i) Before accepting any subscription to purchase Shares from, or making any sale to, any Prospective Investor, have reasonable grounds to believe and will forthwith prepare believe (after making reasonable inquiry pursuant to the Subscription Documents) that (A) such Prospective Investor meets the suitability requirements for investing in the Shares set forth in the Documents, and file (B) such Prospective Investor is an accredited investor (as defined in Regulation D).
(j) Notify you promptly of the acceptance or rejection of any subscription. The Company shall not (i) accept subscriptions from, or make sales of Shares to, any Prospective Investors who are not, to the Company's knowledge, accredited investors, or (ii) unreasonably reject any subscription for Shares.
(k) Cooperate with the Placement Agent's counsel to file a Notice of Sales of Securities on Form D with the Securities and Exchange Commission an appropriate amendment (the "Commission") no later than 15 days after the first sale of the Shares. The Company shall file promptly such amendments to such Notice on Form D as shall become necessary and, as requested by you, shall also comply with any filing requirement imposed by the laws of any state or supplement theretojurisdiction in which offers and sales are made. The Company shall furnish you with copies of all such filings.
(l) Not, directly or indirectly, engage in any act or activity which may jeopardize the status of the offering and sale of the Shares as exempt transactions under the Act or under the securities or "blue sky" laws of any jurisdiction in which the Offering maybe made. Without limiting the generality of the foregoing, and will furnish notwithstanding anything contained herein to the Underwriter contrary, the Company shall not, directly or indirectly, engage in any offering of securities which, if integrated with the Offering in the manner prescribed by Rule 502(a) of Regulation D and each Selected Dealer through whom Units applicable releases of the Commission, may jeopardize the status of the offering and sale of the Shares as exempt transactions under Regulation D.
(m) Apply the net proceeds from the sale of the Shares as set forth in the Offering Documents.
(n) Not, during the period commencing on the date hereof and ending on the Final Closing Date, issue any press release or other communication, or hold any press conference with respect to the Company, its financial condition, results of operations, business, properties, assets, or liabilities, or the Offering, without your prior written consent, except as may be sold, without charge, a reasonable number required by applicable securities laws in the opinion of copies thereofcounsel to the Company.
Appears in 1 contract
Sources: Placement Agency Agreement (Net Tech International Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised. MxXxxxxx & Company, Inc. , 2004 Page 9
(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
6.03. (e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers selected dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after MxXxxxxx & Company, Inc. , 2004 Page 10 the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission if such report is not immediately available on the Commission’s EXXXX website and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for XxXxxxxx & Company, Inc. November 20, 2003 Page 9 amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of XxXxxxxx & Company, Inc. November 20, 2003 the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Premier Community Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. (a) Not later than the Closing Date, the Company will deliver to the Underwriters a copy of the Registration Statement relating to the Debentures as originally filed with the Commission, and of all amendments or supplements thereto relating to the Debentures, certified by an officer of the Company to be in the form filed.
(b) The Company will endeavor deliver to you as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Registration Statement Prospectus to become effective be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise Bear, Stearns & Co. Inc. promptly of the Underwriter promptly and, if requested by issuance of anx xxxx order under the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting Agreement has become effective as the Underwriters are required by law to deliver a prospectus, if any event relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Debentures, the Company will amend or for additional informationsupplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (iiiii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the issuance by Exchange Act which will supplement or amend the Commission Prospectus, so that, as supplemented or amended, it will not contain an untrue statement of any stop order suspending the effectiveness of the Registration Statement a material fact or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the initial effective date of the Registration Statement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner so as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Debentures for offer and sale under the blue-sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statement, (ii) the printing, issuance and delivery of the Debentures and the preparation, execution, printing and recordation of the Indenture, (iii) legal fees and expenses relating to the qualification of the Debentures under the blue-sky laws of various jurisdictions, in an amount not to exceed $10,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any other law, supplemental) blue sky survey and the Company, at its own expense, will forthwith prepare Prospectus and file with the Commission an appropriate any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) fees of the rating agencies in connection with the rating of the Debentures, (vi) fees (if any) of the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and will furnish (vii) the cost to the Underwriter Underwriters of providing immediately available funds on the Closing Date as provided in Section 5 hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (i) the reasonable fees and each Selected Dealer through whom Units may expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (ii) reasonable out-of-pocket expenses, in an amount not exceeding in the aggregate $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be sold, liable to the Underwriters for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional debentures without charge, a reasonable number the consent of copies thereofthe Underwriters until the earlier to occur of (i) the Closing Date or (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (System Energy Resources Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) In further consideration of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementyour agreements herein contained, the Company will make every reasonable effort covenants as follows:
(a) To furnish to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be soldyou, without charge, a copy of (i) the resolutions of the Board of Directors of the Company authorizing the issuance and sale of the Bonds, certified by the Secretary or an Assistant Secretary of the Company as having been duly adopted and (ii) as many copies of the Prospectus (Offering Circular and of any amendment or supplement thereto) the Pricing Disclosure Material as they you may reasonably request. The Company consents .
(b) Before amending or supplementing the Offering Circular (other than by means of a Pricing Supplement), to furnish you a copy of each such proposed amendment or supplement, and to afford you a reasonable opportunity to comment on any such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the use of Offering Circular and the Pricing Disclosure Material in such Prospectus (quantities as you may from time to time reasonably request; and of if at any amendment time when an Offering Circular or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both Pricing Disclosure Material is being used in connection with the initial offering or sale of any of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time Bonds, any event shall occur that in have occurred as a result of which the judgment Offering Circular or the Pricing Disclosure Material would either include any untrue statement of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will (A) notify you to suspend the solicitation of offers to purchase Bonds and if notified by the Company, you shall forthwith suspend such solicitation and cease using the Offering Circular or the Pricing Disclosure Material, as applicable, as then amended or supplemented, and (B) if the Company notifies you that it is would like you to resume the solicitation of offers to purchase, promptly prepare an amendment or supplement to the Offering Circular or the Pricing Disclosure Material which will correct such statement or omission, and furnish you copies of any such amendment or supplement in such quantities as you may reasonably request.
(d) To furnish the necessary information, execute all proper applications and other requisite forms, and otherwise cooperate in qualifying the Bonds under the securities or Blue Sky laws of such states as may be designated by the Purchasing Agent and in determining their eligibility for investment; provided, however, the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in connection with any such qualifications. The Company shall cooperate in continuing such qualifications in effect so long as required for the distribution of the Bonds.
(e) Prior to the termination of this Agreement pursuant to Article VII hereof, to furnish to the Agents, as soon as practicable after the end of each fiscal year, a copy of its annual financial statements for such year, and to furnish to the Purchasing Agent, from time to time, such other information concerning the Company as the Purchasing Agent may reasonably request.
(i) If the Company and the Purchasing Agent agree to list Bonds on any stock exchange (a “Stock Exchange”), to use its reasonable efforts, in cooperation with the Purchasing Agent, to cause such Bonds to be accepted for listing on any such Stock Exchange, in each case as the Company and the Purchasing Agent shall deem to be appropriate. In connection with any such agreement to list Bonds on a Stock Exchange, the Company shall use its reasonable efforts to obtain such listing promptly and shall furnish any and all documents, instruments, information, and undertakings that may be reasonably necessary or advisable in order to obtain and maintain the listing.
(ii) So long as any Bond remains outstanding and listed on a Stock Exchange, if the Offering Circular or the Pricing Disclosure Material, in each case as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact relating to any matter described in the Offering Circular or the Pricing Disclosure Material the inclusion of which was required by the listing rules and regulations of such Stock Exchange on which any Bonds are listed (the “Listing Rules”) or by such Stock Exchange, to provide to the Purchasing Agent information about the change or matter and to amend or supplement the Prospectus Offering Circular or the Pricing Disclosure Material in order to comply with the Listing Rules or as otherwise requested by the Stock Exchange.
(iii) To use reasonable efforts to comply with any undertakings given by it from time to time to any Stock Exchange on which any Bonds are listed.
(g) To notify the Purchasing Agent promptly in writing in the event that the Company does not have a security listed on the New York Stock Exchange.
(h) To notify the Agents immediately, and confirm such notice in writing, of any change in the rating assigned by any nationally recognized statistical rating organization, as such term is defined in Rule 436(g)(2) under the Securities Act Act, to the program under which the Bonds are issued (the “Program”) or any other law, debt securities (including the Bonds) of the Company, at or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its own expenserating of the Program or any such debt securities, will forthwith prepare or the withdrawal by any nationally recognized statistical rating organization of its rating of the Program or any such debt securities.
(i) Semiannually as soon as practicable after March 31 and file with September 30 of each year that this Agreement remains in effect (each, a “Bring Down Date”), to deliver, or cause to be delivered, to each of the Commission an appropriate amendment Agents (i) a certificate of the Company, dated as of the applicable Bring Down Date, to the effect that the representations and warranties of the Company in this Agreement are true and correct, (ii) the opinion of the General Counsel or supplement theretoAssistant General Counsel, Finance, of the Company, dated as of the applicable Bring Down Date, to the effect set forth in Section II(b), and will furnish (iii) the letter of the independent accountant, dated as of the applicable Bring Down Date, to the Underwriter effect set forth in Section II(c), provided, however, that (a) the obligation to deliver the letter of the independent accountant is contingent upon each Agent’s providing the Company with a representation letter that is satisfactory to the independent accountant and each Selected Dealer through whom Units (b) to the extent appropriate, such opinion, letters, and certificates may reconfirm matters set forth in prior opinions, letters, and certificates, with such changes as may be sold, without charge, a reasonable number necessary to reflect changes in the financial statements and other information derived from the accounting records of copies thereofthe Company.
Appears in 1 contract
Sources: Selling Agent Agreement (Tennessee Valley Authority)
Covenants of the Company. The Company Registrants, as applicable, covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company Registrants will, if the Registration Statement has not heretofore become effective under the Act, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, in each case as soon as practicable after the execution and delivery of this Agreement, and will endeavor use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Registrants will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430A and, if applicable, Rule 462, under the Act.
(b) The Company will advise the Underwriter you promptly and, if requested by the Underwriterany of you, will confirm such advice in writing writing, (i) when the Registration Statement has become effective effective, if and when the Prospectus is sent for filing pursuant to Rule 424 under the Act and when any post-effective amendment thereto thereafter to the Registration Statement becomes effective, (ii) of the receipt of any request by comments from the Commission for amendments or supplements any state securities commission or regulatory authority that relate to the Registration Statement or requests by the Commission or any state securities commission or regulatory authority for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Units Securities, including the Common Stock issuable upon conversion thereof, for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes purpose by the Commission or any state securities commission or any other regulatory authority, and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that during such period as in your reasonable judgment you are required to deliver a prospectus in connection with sales of the Securities by you which makes any statement of a material fact made in the Registration Statement untrue or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any addition additions to or change changes in the Registration Statement or the Prospectus (as then amended or supplementedsupplemented from time to time) to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or that makes any statement of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated made in the Prospectus (as then amended or supplementedsupplemented from time to time) untrue or which requires the making of any additions to or changes in the Prospectus (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, and, if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or if any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(c) The Company will furnish to you without charge two (2) signed copies (plus one (1) additional signed copy to your legal counsel) of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits filed therewith, and will furnish to you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(d) The Registrants will not file any amendment or supplement to the Registration Statement, whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus, of which you shall not previously have been advised and provided a copy within two business days prior to the filing thereof (or such reasonable amount of time as is necessitated by the exigency of such amendment or supplement) or to which you shall reasonably object; and the Registrants will prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Securities by you, and will use their best efforts to cause any amendment to the Registration Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective, and from time to time thereafter for such period in your reasonable judgment as a prospectus is required to be delivered in connection with sales of the Securities by you, the Company will furnish to each Underwriter and dealer without charge as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as the Underwriter and dealers may reasonably request. The Registrants consent to the use of the Prospectus and any amendment or supplement thereto by any Underwriter or any dealer, both in connection with the offering or sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act or the Exchange Act to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are required to deliver a prospectus in connection with sales of the Securities by you any event shall occur as a result of which, in the opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing as of the date the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, Registrants will forthwith promptly prepare and file with the Commission an appropriate amendment or supplement theretoto the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances existing as of the date the Prospectus is so delivered, be misleading, and will comply with applicable law, and will furnish to each Underwriter and dealer without charge such number of copies thereof as the Underwriter and dealers may reasonably request.
(g) Prior to any public offering of the Securities, the Registrants will cooperate with you and your counsel in connection with the registration or qualification of the Securities, including the Common Stock issuable upon conversion thereof, for offer and sale by you under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, that the Registrants shall not be obligated to qualify as a foreign corporation in any jurisdiction in which they are not so qualified or to take any action that would subject them to general consent to service of process in any jurisdiction in which they are not now so subject). The Registrants will continue such qualification in effect so long as required by law for distribution of the Securities.
(h) The Company will make generally available to its security holders as soon as reasonably practicable a consolidated earning statement covering a period of at least twelve months beginning after the "effective date" (as defined in Rule 158 under the Act) of the Registration Statement (but in no event commencing later than 90 days after such date) which shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and otherwise fully comply in a timely manner with all provisions of the Exchange Act.
(j) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each Selected Dealer through whom Units report of the Company mailed to shareholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, and (ii) from time to time such other information concerning the Company as you may request.
(k) The Company will use the proceeds from the sale of the Securities in the manner described in the Prospectus under the caption "Use of Proceeds."
(l) The Company will cause the Securities to be quoted on the Nasdaq Stock Market's SmallCap Market (the "Nasdaq SmallCap Market") and will use its reasonable best efforts to maintain such quotation while any of the Securities are outstanding.
(m) The Registrants will use their best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and otherwise comply fully in a timely manner with all provisions of the Exchange Act, and will file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of the Prospectus is required in connection with the offer or sale of the Securities, including the Common Stock issuable upon conversion thereof.
(o) During the period beginning on the date of this Agreement and continuing to and including the Closing Date, except as described under "Transactions" in the Prospectus with respect to the Pending Transactions and under "Prospectus Supplement Summary -- Recent Developments" in the Prospectus with respect to certain other potential transactions, there will be no transactions entered into by the Company or any of its subsidiaries (each a "Subsidiary" and, collectively, the "Subsidiaries"), which are material with respect to the Company or any of the Subsidiaries, respectively, taken individually or as a whole, as determined in accordance with the provisions of Rule 3-05 of Regulation S-X or other standards for materiality as may be soldagreed upon by the Company and the Underwriter and there will be no dividend or distribution of any kind declared, without charge, a reasonable number paid or made by the Company on any class of copies thereofcapital stock or other equity interests.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. The Company will endeavor to cause : Not later than the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerClosing Date, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may Underwriters a conformed copy of the Registration Statement in the form that it or the most recent post-effective amendment thereto became effective, certified by an officer of the Company to be sold, without charge, in such form. The Company will deliver to the Underwriters as many copies of the Prospectus (and of any amendment amendments or supplement supplements thereto) as they the Underwriters may reasonably request. The Company consents will cause the Prospectus to be filed with the use Commission pursuant to and in compliance with Rule 424(b) and will advise [__________________________________], as representative of such Prospectus (and the Underwriters, promptly of the issuance of any amendment or supplement thereto) in accordance with the provisions of stop order under the Securities Act and with respect to the securities Registration Statement or blue sky laws the institution of the jurisdictions in any proceedings therefor of which the Units are offered by Company shall have received notice. The Company will use its best efforts to prevent the Underwriter issuance of any such stop order and by Selected Dealers through whom Units may be sold, both in connection with to secure the offering or sale of the Units and for prompt removal thereof if issued. During such period of time thereafter as the Prospectus is Underwriters are required by law to be delivered in connection therewith. If during such period of time deliver a prospectus after this Underwriting Agreement has become effective, if any event shall occur that in the judgment of relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of counsel for the Underwritercircumstances when it is delivered to a purchaser of the Bonds, requires that the Company will amend or supplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the Exchange Act which will supplement or amend the Prospectus, so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter. The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner, as to meet the requirements of the last paragraph of Section 11 (a) of the Securities Act and Rule 158 under the Securities Act. At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required by, and will otherwise cooperate in qualifying the Bonds for offer and sale under, the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other lawrequirements deemed by the Company to be unduly burdensome. The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statement and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Bonds and the preparation, execution, printing and recordation of the Supplemental Indenture, (iii) legal counsel relating to the qualification of the Bonds under the blue sky laws of various jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the Companypreliminary (and any supplemental) blue sky survey, at its own expense, will forthwith prepare any preliminary prospectus supplement relating to the Bonds and file with the Commission an appropriate Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Bonds by one or more nationally recognized statistical rating agencies and (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will furnish reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriter Underwriters for damages on account of loss of anticipated profits. The Company will not sell any additional First Mortgage Bonds without the consent of [________________________________], as representative of the Underwriters, until the earlier to occur of (i) the Closing Date and each Selected Dealer through whom Units may (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date. As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be soldfurnished to the Underwriters a supplemental opinion of counsel for the Company, without chargeaddressed to the Underwriters, a reasonable number of copies thereofstating that all such recordings, registrations and filings have been made.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause notify you or your counsel immediately, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effectivethereto, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for amendments any amendment or supplements supplement to the Registration Statement or the Prospectus or for additional information, and (iiiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the withdrawal of such order lifting thereof at the earliest possible timemoment.
6.02. (b) The Company will not give you notice of its intention to file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of (including a prospectus filed pursuant to Rule 424(b) which differs from the Underwriter shall prospectus on file at the time the Registration Statement becomes effective), and will not have been advised previously file any such amendment or supplement to which the Underwriter you or your counsel shall reasonably object in writing promptly after being so advisedobject.
6.03. On the Effective Date (c) The Company will deliver to you as many signed copies of the Registration Statement as originally filed and thereafter of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as you may reasonably request.
(d) The Company will furnish to you, from time to time, for such time during the period as in when the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the 1933 Act, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many such number of copies of the Prospectus (and of any amendment as amended or supplement theretosupplemented) as they each such Underwriter may reasonably request. The Company consents to request for the use of such Prospectus (purposes contemplated by the 1933 Act or the 1933 Act Regulations and of any amendment or supplement thereto) in accordance with for purposes contemplated by the provisions of the Securities 1934 Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter rules and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. regulations thereunder.
(e) If during such period of time any event shall occur that in the judgment as a result of the Companywhich it is necessary, or in the opinion of counsel for your counsel, to amend the UnderwriterRegistration Statement and the Prospectus or to supplement 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, requires that the Company will forthwith amend the Registration Statement and the Prospectus or supplement the Prospectus, as the case may be, by preparing and furnishing to you a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to the Registration Statement and the Prospectus (in form and substance satisfactory to your counsel), so that, as so amended or supplemented, the Registration Statement and the Prospectus, as the case may be, will not contain an untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser, not misleading.
(f) The Company will endeavor, in cooperation with you and your counsel, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States and foreign jurisdictions as you may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Shares. The Company shall not, however, be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified except as may be required by the laws of the State of New York. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which such securities have been qualified as above provided.
(g) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) of the 1933 Act, which need not be certified by independent public accountants unless required by the 1933 Act or the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement.
(h) The Company will for a period of five years from the effective date of the Registration Statement furnish directly to you, as soon as the same shall be sent to the Company's shareholders, copies of any annual or interim reports of the Company to its shareholders, and it will, for the same period, also furnish you with the following:
(i) Concurrently with furnishing to the Company's shareholders one copy of the annual independent accountants' report, including therein the accountants' certificate, the consolidated balance sheet of the Company and its subsidiaries, if any, and the related consolidated statements of income, operations, retained earnings, and changes in financial position;
(ii) copies of any report, application, or if document which the Company shall file with the Commission, the National Association of Securities Dealers Automated Quotation System (NASDAQ), or any securities exchange;
(iii) copies of any press releases disseminated to the public; and,
(iv) as soon as the same shall be sent to the shareholders, each communication which shall be sent to the shareholders as a class.
(i) The Company will apply the net proceeds from the sale of the Shares sold by it is necessary to amend or supplement hereunder for the purposes set forth under "Use of Proceeds" in the Prospectus to in substantially the amounts indicated thereunder.
(j) The Company will comply with the Securities safeguards proposed for transient investment companies as set forth in Rule 3a-2 of the Investment Company Act of 1940 for temporary exclusion from its requirements.
(k) For a period of twenty-four (24) months beginning on the effective date of the Registration Statement, the Company will not, and will not permit any of its subsidiaries to, issue any shares of Common Stock to any person or any warrants, option, or other lawrights to purchase or acquire any shares of Common Stock to any officer, director, or principal shareholder of the Company or any affiliate or associate thereof except with your prior written consent, such consent not to be unreasonably withheld.
(l) For a period of thirty (30) days beginning on the effective date of the Registration Statement, the Company will not hold any discussion with any member of the news media nor release any information or other publicity about itself, its properties, or its management without your prior written consent and prior notification to your counsel.
(m) The Company will not retain any NASD member within a period of twelve (12) months after the sale of Shares hereunder, to act as a finder or consultant for purposes of locating a merger/acquisition candidate.
(n) The Company undertakes not to retain any person or entity to conduct a search, or to assist in the conduct of the Company's search, at its own expensefor merger/acquisition candidates, without providing you with thirty days notification and sufficient information to permit you to respond to the NASD with respect to such retention.
(o) The Company will forthwith prepare and file with the Commission an appropriate amendment a report on Form SR in accordance with the 1933 Act regulations and will supply copies of the Form SR, and any amendments or supplement supplements thereto, to you and your counsel within five days of its filing with the Commission.
(p) If not accomplished as of the effective date, within 30 days following the Closing Time, the Company will register its equity securities under Section 12(g) of the 1934 Act, will use its best efforts to cause the Registration Statement to become effective, and will furnish supply copies of the Form 8-A, and any amendments or supplements thereto, to you and your counsel within five days of its filing with the Underwriter Commission.
(q) The Company will obtain a CUSIP number for its Common Stock by the first day for trading of the Shares. The Company will use its best efforts to have the Shares listed on NASDAQ on the first day of trading of the Shares with a NASDAQ symbol mutually agreeable to you and each Selected Dealer through whom Units may be soldthe Company. For as long as the Common Stock is registered under the 1934 Act, without chargethe Company will comply in all material respects with the 1934 Act and the rules and regulations thereunder and will hold an annual meeting of shareholders for the election of directors within 180 days following the end of the Company's fiscal year.
(r) Within 10 days following the Closing Time, the Company will apply for listing on Moody's Over-the-Counter Industrial Manual and Standard & Poxx'x Xxrporation Description Manual.
(s) The Company shall retain a reasonable number transfer agent satisfactory to you to transfer the shares of copies thereofCommon Stock.
(t) Within 90 days following the Closing Time, the Company will at its expense prepare for you and your counsel three bound volumes of the offering documents.
Appears in 1 contract
Sources: Underwriting Agreement (Easylink Information Technology Co LTD)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor advise Underwriter promptly of any proposal to cause amend or supplement the Registration Statement as filed, or the related Prospectus, prior to become effective each Closing Date, and will not effect such amendment or supplement without Underwriter’s consent which will not be unreasonably withheld; the Company will also advise the Underwriter promptly and, if requested by of the Underwriter, will confirm such advice in writing (i) when effectiveness of the Registration Statement has become effective (if the Effective Time is subsequent to the execution and when delivery of this agreement), of any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements supplement to the Registration Statement or the Prospectus or for additional informationProspectus, (iii) and of receipt of notification of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or of any order preventing or suspending the use of any prospectus relating to the Shares, of the suspension of the qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 belowpurpose, of the happening or of any event that makes any statement made in request by the Commission to amend or supplement the Registration Statement or Prospectus or for additional information and will use its best efforts to prevent the issuance of any such stop order or of any order preventing or suspending the use of any prospectus relating to the Shares or suspending any such qualification and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change supplemented would, in the Registration Statement judgment of Underwriter, include an untrue statement of a material fact, or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act Act, or any other law, the Company, at its own expense, Company promptly will forthwith prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance and will notify Underwriter and, upon Underwriter's request prepare and furnish without charge to Underwriter and to any dealer in securities as many copies as Underwriter may from time to time reasonably request, of an amended Prospectus or a supplement to the Prospectus complying with Section 8(a) of the Act which will correct such statement or omission or effect such compliance.
(c) The Company will deliver to Underwriter as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith and documents incorporated therein by reference) as Underwriter may reasonably request and will also deliver to Underwriter a conformed copy of the Registration Statement and each amendment thereto (including documents incorporated therein by reference).
(d) The Company will take such action as Underwriter may reasonably request to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as Underwriter may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Shares. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. DRAFT
(e) During the period of twelve (12) months hereafter, the Company will furnish to Underwriter as soon as practicable after the Underwriter and each Selected Dealer through whom Units may be sold, without chargeend of its fiscal year, a reasonable number copy of copies thereofits annual report to shareholders for such year, and the Company will furnish to Underwriter (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act, or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as Underwriter may reasonably request.
(f) The Company, during the period when the Prospectus relating to the Shares is required to be delivered under the Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act.
(g) The Company currently has, and will continue to use its best efforts to maintain, the listing of its Common Stock on the Over The Counter Bulletin Board.
Appears in 1 contract
Sources: Underwriting Agreement (American Realty Funds Corp)
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:, to the extent that the Issuer has not already performed such act pursuant to Section 8(a):
6.01. (i) To the extent permitted by applicable law and the agreements and instruments that bind the Company, the Company will use its reasonable best efforts to cause the Issuer to comply with the covenants set forth in Section 8(a) hereof.
(ii) The Company will endeavor use its reasonable best efforts to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of prevent the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of and, if issued, to obtain as soon as possible the suspension of qualification of the Units for offering or sale in any state or jurisdictionwithdrawal thereof.
(iii) If, or the initiation of any proceeding for during such purposes and (iv) within the period of time referred to in Section 6.03 below, of (not exceeding nine months) after the happening of any event that makes any statement made in the Registration Statement or the Final Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply has been filed with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort pursuant to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period Rule 424 as in the written opinion of counsel Counsel for the Underwriter Underwriters a Prospectus prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, any event relating to or affecting the Company, the Company will deliver to Bonds or the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies Transition Property or of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered Company shall be advised in writing by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event Representatives shall occur that in the Company’s reasonable judgment after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Final Prospectus in order to make the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will cause the Issuer, at the Company’s or the Issuer’s expense, to amend or in supplement the opinion Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Company’s or the Issuer’s expense a reasonable number of counsel for copies of a supplement or supplements or an amendment or amendments to the UnderwriterFinal Prospectus or (B) causing the Issuer to make an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, requires that which will supplement or amend the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Final Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Company will also fulfill its obligations set out in Section 4(d) above.
(iv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(v) The Company will cause the proceeds for the issuance and sale of the Bonds to be applied for the purposes described in the Pricing Prospectus.
(vi) To the extent, if it is any, that any rating necessary to amend satisfy the condition set forth in Section 9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or supplement the Prospectus taking of other actions by the Company on or after the Closing Date, the Company shall furnish such documents and take such other actions.
(vii) The initial Transition Charge will be calculated in accordance with the Financing Order.
(viii) So long as the Bonds are rated by a Rating Agency, the Company, in its capacity as sponsor with respect to the Bonds, will cause the Issuer to comply with the Securities Act 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any other law, noncompliance arising from the Company, at its own expense, will forthwith prepare breach by an Underwriter of the representations and file with the Commission an appropriate amendment or supplement thereto, warranties and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereofcovenants set forth in Section 13 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (CenterPoint Energy Transition Bond Co IV, LLC)
Covenants of the Company. The Company covenants and agrees the Trust, jointly and severally, covenant and agree with the Underwriter thatseveral Underwriters:
6.01. The Company will endeavor (a) To use their reasonable best efforts to cause the Registration Statement to become effective and will at the earliest possible time.
(b) To advise the Underwriter you promptly after obtaining knowledge thereof and, if requested by the Underwriteryou, will to confirm such advice in writing writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto thereafter to it becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Preferred Securities for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes purposes, and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that during the period referred to in paragraph (e) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended untrue or supplemented) untrue in any material respect or that which requires the making of any addition additions to or change changes in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawmisleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company Offerors will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
6.02. The Company will (c) To furnish to you, without charge, three copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(d) To (i) prepare and timely file with the Commission under Rule 424(b) a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A, (ii) not file any amendment or supplement to the Registration Statement, whether before or after the time when it becomes effective, or to make any amendment or supplement to the Prospectus, of which you shall not previously have been advised or to which you shall reasonably object; and (iii) at any time prior to the termination of the offering of the Preferred Securities, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or make any amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of which the Underwriter shall not have been advised previously or Preferred Securities by you, and to which use its best efforts to cause the Underwriter shall reasonably object in writing same to become promptly after being so advisedeffective.
6.03. On the Effective Date of (e) Promptly after the Registration Statement becomes effective, and thereafter from time to time, for such period as time thereafter at any time prior to the termination of the offering of the Preferred Securities if in the written opinion of counsel for the Underwriter Underwriters a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the furnish to each Underwriter and each Selected Dealer through whom Units may be sold, without charge, dealer as many copies of the Prospectus (and of any amendment or supplement theretoto the Prospectus) as they such Underwriter or dealer may reasonably request. The During such period, the Company consents will file or cause to be filed all documents required to be filed with the Commission pursuant to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with Exchange Act within the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered time periods required by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. Exchange Act.
(f) If during such the period of time specified in paragraph (e) any event shall occur that in the judgment as a result of the Companywhich, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in Underwriters it becomes necessary to amend or supplement the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith to prepare and file with the Commission an appropriate amendment or supplement theretoto the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and will to furnish to the each Underwriter and each Selected Dealer through whom Units may be soldto such dealers as you shall specify, without charge, a reasonable such number of copies thereofthereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Preferred Securities, to cooperate with the Underwriters and counsel for the Underwriters in connection with the registration or qualification of the Preferred Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may reasonably request, to continue such qualification in effect so long as required for distribution of the Preferred Securities and to file such other documents as may be necessary in order to effect such registration or qualification; PROVIDED, HOWEVER, that neither the Company nor any of its subsidiaries shall be obligated
Appears in 1 contract
Sources: Underwriting Agreement (Dayton Superior Capital Trust)
Covenants of the Company. The Company covenants and agrees with the Underwriter Unified Management that:
6.01. (a) The Company will endeavor (i) 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 containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (ii) not file any amendment to the Registration Statement or supplement to the Prospectus of which Unified Management shall not previously have been advised and furnished with a copy or to which Unified Management shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(b) The Company will advise the Underwriter Unified Management promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become or any post-effective and when any amendment thereto thereafter becomes shall have become effective, (ii) of receipt of any comments from the Commission, (iii) of any request by of the Commission for amendments or supplements to amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (iiiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or institution of any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02proceedings for that purpose. The Company will not file use its best efforts to prevent the issuance of any amendment to such stop order preventing or suspending the Registration Statement or make any amendment or supplement to use of the Prospectus of which and to obtain as soon as possible the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advisedlifting thereof, if issued.
6.03(c) The Company will cooperate with Unified Management in endeavoring to qualify the Units for sale under the securities laws of Florida and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose. On the Effective Date of the Registration Statement and thereafter 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 qualification in effect for such so long a period as in Unified Management may reasonably request.
(d) The Company will deliver to Unified Management during the written opinion period when delivery of counsel for the Underwriter a Prospectus is required under the Act, as many paper copies of the Prospectus in final form, or as thereafter amended or supplemented, as Unified Management may reasonably request. Until the Offering is terminated, the Company will maintain the Prospectus on its website in several electronic formats, including HTML and MS Word, so as to permit prospective investors to download such Prospectus in compliance with the Act and the Rules and Regulations relating to the use of electronic media for delivery purposes.
(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 sale of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerUnified Management, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that as a result of which, in the judgment of the Company, Company or in the reasonable opinion of counsel for the UnderwriterUnified Management, requires that a material fact be stated in it becomes necessary to amend or supplement the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser, not misleading, or or, if it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, Company promptly will forthwith prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement thereto, and will furnish to the Underwriter 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 16 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and each Selected Dealer through whom Rule 158 of the Rules and Regulations.
(g) The Company will, for a period of two years from the date of the Prospectus, deliver to Unified Management, either electronically or printed on paper, 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 Exchange Act.
(h) There is no public market for the Common Stock and it is unlikely that any such market will develop after the Offering. The Company does not currently meet the requirements for listing on an organized stock exchange or quotation of over-the counter market maker trades on the Nasdaq market. The Company will use reasonable efforts to list the Common Stock on a regulated securities exchange following the termination of the Offering.
(i) The Company shall apply the net proceeds of its sale of the Units as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Units and the application of the proceeds here from as may be soldrequired in accordance with Rule 463 under the Act.
(j) The Company shall not invest, without chargeor otherwise use the proceeds received by the Company from its sale of the Units in such a manner as would require the Company or any of the subsidiaries to register as an investment company under the 1940 Act.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a reasonable number registrar for the Common Stock.
(l) 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 copies thereofthe price of any securities of the Company.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. The Company will endeavor to cause (a) Not later than the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerClosing Date, the Company will deliver to the Underwriter and Underwriters a conformed copy of each Selected Dealer through whom Units may Registration Statement in the form that it or the most recent post-effective amendment thereto became effective, certified by an officer of the Company to be sold, without charge, in the form filed.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and of any amendment amendments or supplement supplements thereto) as they the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with the Commission pursuant to and in compliance with Rule 424(b) and will advise [Lead Manager] promptly of the issuance of any stop order under the Securities Act with respect to either of the Registration Statements or the institution of any proceedings therefor of which the Company shall have received notice. The Company consents will use its best efforts to prevent the use of such Prospectus (and issuance of any amendment or supplement theretosuch stop order and to secure the prompt removal thereof if issued.
(d) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for During such period of time thereafter as the Prospectus is Underwriters are required by law to be delivered in connection therewith. If during such period of time deliver a prospectus after this Underwriting Agreement has become effective, if any event shall occur that in the judgment of relating to or affecting the Company, or of which the Company shall be advised by the Underwriters in writing, shall occur which in the Company's opinion should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of counsel for the Underwritercircumstances when it is delivered to a purchaser of the Securities, requires that the Company will amend or supplement the Prospectus by either (i) preparing and filing with the Commission and furnishing to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus, or (ii) making an appropriate filing pursuant to Section 13, 14 or 15(d) of the Exchange Act which will supplement or amend the Prospectus, so that, as supplemented or amended, it will not contain any untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), or if it is necessary the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to amend or supplement its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the Prospectus "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to comply with security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Securities for offer and sale, under the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing of the Registration Statements and any post-effective amendments thereto, (ii) the printing, issuance and delivery of the Securities and the preparation, execution, printing and recordation of the Indenture, (iii) legal counsel relating to the qualification of the Securities under the blue sky laws of various jurisdictions, in an amount not to exceed $3,500, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statements, the preliminary (or any other lawsupplemental) blue sky survey, any preliminary prospectus supplement relating to the Company, at its own expense, will forthwith prepare Securities and file with the Commission an appropriate Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Securities by one or more nationally recognized statistical rating agencies and (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will furnish reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses, in an aggregate amount not exceeding $15,000, incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriter Underwriters for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional debt securities without the consent of the Underwriters until the earlier to occur of (i) the Closing Date and each Selected Dealer through whom Units may be sold, without charge, a reasonable number (ii) the date of copies thereofthe termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
Appears in 1 contract
Covenants of the Company. The With respect to each issuance of Conversion Notes, the Company covenants and agrees with the Underwriter thatLucent as follows:
6.01. (i) The Company will endeavor to cause advise Lucent and each Other Person (provided that the Company has been notified of such Other Person), when any Registration Statement to become effective and will advise any amendment thereto has been filed with the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective Commission and when any Registration Statement or any post-effective amendment thereto thereafter becomes has become effective, .
(ii) The Company will file each Relevant Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2), not later than the first business day following the delivery of the relevant Conversion Certificate.
(iii) The Company will furnish to Lucent and each Other Person such number of copies of each Relevant Registration Statement and Relevant Prospectus, including all exhibits, and any amendments or supplements thereto as Lucent and each Other Person may reasonably request.
(iv) The Company will not at any time make any amendment or supplement to any Relevant Registration Statement or any Relevant Prospectus of which Lucent and each Other Person (provided that the Company has been notified of such Other Person) shall not have previously been advised and furnished a copy and have had reasonable opportunity to comment on such proposed amendment or supplement, or to which Lucent or any Other Person or their respective counsel shall reasonably object, except as required by applicable law.
(v) The Company will advise Lucent and each Other Person (provided that the Company has been notified of such Other Person), of the institution by the Commission of any stop order proceedings in respect of any Relevant Registration Statement or of any part thereof and will use every reasonable effort to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(vi) The Company will advise Lucent and each Other Person (provided that the Company has been notified of such Other Person), of any request by the Commission for amendments or supplements to the any Relevant Registration Statement or the any Relevant Prospectus or for additional information. Upon receipt of such notice from the Company use of each Relevant Prospectus shall be suspended until the Company has amended or supplemented each Relevant Prospectus to correct such misstatement or omission or to effect such compliance. The Company will forthwith prepare such amendment or supplement as may be necessary so that each Relevant Prospectus, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then so amended or supplemented) , does not include an untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and furnish to Lucent or such Other Person, as applicable, such number of copies as Lucent or such Other Person, as applicable, may reasonably request.
(vii) If at any time prior to completion of the necessity distribution of the Conversion Notes by Lucent or such Other Person to purchasers who are not its affiliates (as determined by Lucent, or such Other Person, as applicable) any event shall occur or condition shall exist as a result of which it is necessary, in the view of the Company or in the reasonable view of Lucent or such Other Person, as applicable, to amend or supplement each Relevant Prospectus in order that each Relevant Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Prospectus (as then amended statements therein not misleading, or supplemented) if such amendment or supplement is necessary to comply with the Securities Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort (in a form and in substance that shall be reasonably satisfactory to obtain the withdrawal of Lucent, or such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any Other Person, as applicable), forthwith prepare such amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without chargenecessary so that each Relevant Prospectus, as many so amended or supplemented, does not include such untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading and furnish to Lucent or such Other Person, as applicable, such number of copies of the Prospectus (and of any amendment as Lucent or supplement thereto) such Other Person, as they applicable, may reasonably request. The Company consents agrees to notify Lucent and each Other Person (provided that the Company has been notified of such Other Person) to suspend use of each Relevant Prospectus as promptly as practicable after the occurrence of an event specified in the first sentence of this paragraph (without giving effect to the reasonable view of Lucent or such Other Person, as applicable), and upon receipt of such notice from the Company use of each Relevant Prospectus shall be suspended until the Company has amended or supplemented each Relevant Prospectus to correct such Prospectus misstatement or omission or to effect such compliance.
(viii) The Company will furnish to Lucent and each Other Person (provided that the Company has been notified of such Other Person) copies of any amendment or supplement thereto) in accordance with the provisions of the Securities Act annual reports, quarterly reports and with the securities or blue sky laws of the jurisdictions in which the Units are offered current reports filed by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file Company with the Commission an appropriate amendment on Forms 10-K, 10-Q and 8-K, or supplement theretosuch other similar forms as may be designated by the Commission, and will furnish such other documents, reports and information as shall be furnished by the Company to the Underwriter Trustee or to the holders of the Conversion Notes pursuant to the Conversion Indenture but only so long as the Company is obligated to furnish the foregoing documents pursuant to the Conversion Indenture.
(ix) The Company will use its commercially reasonable efforts in cooperation with Lucent and each Selected Dealer Other Person to (A) permit the Conversion Notes to be eligible for clearance and settlement through whom Units the Depository, (B) provide a CUSIP number for the Conversion Notes not later than the effective date of each Relevant Registration Statement, and (C) provide the Trustee with printed certificates for the Conversion Notes in a form eligible for deposit with the Depository.
(x) The Company will endeavor, in cooperation with Lucent, each Other Person and their respective counsel, to qualify the Conversion Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as Lucent may reasonably designate; provided, that the Company shall not be sold, without charge, obligated to qualify as a reasonable number foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject the Company to general service of copies thereof.process in any jurisdiction where it
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter you that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by upon notification from the Underwriter, will confirm such advice in writing (i) when Commission that the Registration Statement has become effective effective, will so advise you and when will not at any time, whether before or after the Effective Date, file any amendment thereto thereafter becomes effectiveto the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by you of the distribution of the Shares contemplated hereby (but in no event more than nine (9) months after the Effective Date) and (B) twenty-five (25) days after the Effective Date, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in your reasonable opinion, may be necessary or advisable in connection with the distribution of the Shares. Promptly after you or the Company is advised thereof, you will advise the Company or the Company will advise you, as the case may be, and confirm the advice in writing, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop orders or other order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereof.of
Appears in 1 contract
Sources: Underwriting Agreement (Team Communication Group Inc)
Covenants of the Company. (a) The Company covenants and agrees with the Underwriter thatas follows:
6.01. (i) The Company will endeavor to cause notify the Registration Statement to become effective Placement Agents and/or their counsel promptly, and will advise confirm the Underwriter promptly andnotice in writing, if requested of the initiation by the Underwriter, will confirm such advice in writing (i) when SEC or any state securities commission of any proceeding against the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, Company.
(ii) The Company will give the Placement Agents notice of any request by its intention to amend or supplement the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, Disclosure Package.
(iii) If any event shall occur as a result of which it is necessary, in the reasonable opinion of the issuance Placement Agents and the Company, to amend or supplement the Disclosure Package in order to make the Disclosure Package not misleading, the Company will forthwith amend or supplement the Disclosure Package by preparing and furnishing to the Commission Placement Agents a reasonable number of any stop order suspending the effectiveness copies of the Registration Statement an amendment or of the suspension of qualification of the Units for offering or sale in any state or jurisdictionamendments of, or a supplement or supplements to, the initiation of any proceeding for such purposes Disclosure Package (in form and (iv) within substance reasonably satisfactory to the period of time referred to in Section 6.03 belowPlacement Agents and the Company), of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (so that, as then so amended or supplemented) , the Disclosure Package will not contain an untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under in which they were made, not misleading.
(iv) In the event that the Company is not subject to periodic reporting requirements of the 1934 Act, or if it is necessary the Company shall deliver to amend or supplement the Prospectus to comply with Placement Agents and any Investor who so requests (a) as soon as available, and in any event within forty-five (45) days after the Securities Act or any other law, end of each respective quarterly fiscal period (except the last) of each fiscal year of the Company, at its own expensecopies of the balance sheets of the Company as of the end of such quarterly fiscal period, will forthwith prepare and file the related statements of operations and cash flows of the Company for such quarterly fiscal period and for the portion of the fiscal year ending with such period, all in reasonable detail, and certified by the chief financial officer of the Company, as being true and correct in all material respects, as having been prepared in accordance with GAAP; and (b) as soon as available and in any event within ninety (90) days after the close of each respective fiscal year of the Company, copies of the audited balance sheets of the Company as of the close of such fiscal year and the related audited statements of operations and cash flows of the Company for such fiscal year, all in reasonable detail and accompanied by an opinion thereon of independent public accountants of the Company to the effect that such financial statements have been prepared in accordance with GAAP and fairly present in all material respects the financial condition and results of operations of the Company.
(v) The Company shall cooperate with the Commission an appropriate amendment Placement Agents and their counsel in endeavoring to qualify the Securities for offer and sale in connection with the Offering under the laws of such states in the United States as the Placement Agents may reasonably designate and shall maintain such qualifications in effect so long as reasonably required for the distribution of the Securities; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or supplement theretoto take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Disclosure Package or the offering for sale of the Securities, in any jurisdiction in which it is now so subject.
(vi) Except as required by the rules and regulations of the 1934 Act in connection with the transactions contemplated by the Memorandum, prior to the earlier of the termination of this Agreement or the final Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business affairs or business prospects, or the offering of the Securities without the prior written consent of the Placement Agents, which consent shall not be unreasonably withheld or delayed, unless in the judgment of the Company and its counsel, and will furnish after notification to the Underwriter Placement Agents, such press release or communication is required by law.
(vii) The Company will apply the net proceeds from the offering of the Securities in the manner set forth under “Use of Proceeds” in the Memorandum subject to the qualifications set forth in the “Risk Factors” therein.
(viii) Prior to the Closing Date, the Statement of Designations will be duly executed and each Selected Dealer through whom Units acknowledged by the Company and filed with the Registrar of Companies of the Republic of the Mxxxxxxx Islands and will become effective in accordance with the provisions of the Business Corporations Act of the Republic of the Mxxxxxxx Islands.
(b) The Company agrees to pay, or reimburse if paid by the Placement Agents, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing (if required) and distribution of the Disclosure Package, all amendments and supplements to the Disclosure Package, including all exhibits thereto; (ii) the preparation and delivery of certificates for the shares of Preferred Stock; (iii) the qualification of the Securities for offer and sale under the securities or blue sky laws, including the reasonable fees and disbursements of counsel for the Placement Agents in connection with such qualification and the preparation, printing, distribution and shipment of preliminary and supplementary blue sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Placement Agents of copies of the Disclosure Package, amendments or supplements to the Memorandum, and of the several documents required by this Section 5 to be so furnished, as may be soldreasonably requested for use in connection with the offering and sale of the Securities; (v) the costs and expenses by or on behalf of the Company relating to investor presentations in connection with the marketing of the offering of the Securities, including, without chargelimitation, a expenses associated with the production of slides and graphics, fees and expenses of any consultants engaged in connection with the presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants; and (vii) all reasonable number out-of-pocket expenses of copies thereofthe Placement Agents or any agent thereof (including reasonable fees and expenses of legal counsel) in connection with the performance of the services hereunder.
Appears in 1 contract
Covenants of the Company. The Company covenants and ------------------------ agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective at the earliest practicable time. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest practicable moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus (including the issuance or filing of any proceeding for Term Sheet) of which you have not been furnished with a copy a reasonable time prior to such purposes filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(ivb) within The Company will prepare and file with the period of time referred Commission, promptly upon your request, any amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended including the issuance or supplemented) untrue in any material respect or that requires the making filing of any addition Term Sheet) which in your judgment may be necessary or advisable to or change in enable the several Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time, within the nine-month period referred to in Section 10(a)(3) of the Act, at which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after such nine-month period, the Company upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its stockholders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will forthwith prepare furnish to you and the Selling Stockholders or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholders may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriter Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units may be soldproxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 120 days after the date of the Prospectus, without chargethe prior written consent of Xxxxxxxxxx Securities, the Company will not (other than pursuant to the grant of stock options and awards authorized under the Company's Stock Plans (as defined in the Prospectus), the exercise of outstanding stock options and warrants and the conversion of outstanding shares of Class B Common Stock, in each case as disclosed in the Prospectus) issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security.
(i) The Company will use its best efforts to designate and maintain the inclusion of the Common Stock for quotation as a reasonable number national market system security on the NASD Automated Quotation System.
(j) The Company will use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the First Closing Date or any Second Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of copies thereofthe Shares. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below5(e), of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary Prospectus so furnished by the Company.
(e) On the Effective Date xxx xxxxctive date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an the Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) If required, the Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(h) During the period of five years after the Closing Date, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
(i) For a period of 180 days from the date of the Prospectus, the Company will not directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible McKinnon & Company, Inc. ____________, 2002 Page 10 into or exchangeaxxx xxx Common Stock (other than the Shares and shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of the Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Carolina Bank Holdings Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you promptly of any request of the period Commission for amendment or supplement of time referred to in Section 6.03 belowthe Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information.
(b) The Company will give you notice of its intention to file or prepare any event that makes any statement made in amendment to the Registration Statement (including any post-effective amendment) or any Rule 462(b) Registration Statement or any amendment or supplement to the Prospectus (as then amended or supplemented) untrue including any revised prospectus which the Company proposes for use by the Underwriters in any material respect or that requires connection with the making offering of any addition to or change in the Shares which differs from the prospectus on file at the Commission at the time the Registration Statement became or becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) and any term sheet as contemplated by Rule 434) and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Prospectus case may be, and will not file any such amendment or supplement or use any such prospectus to which you or counsel for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the Company will prepare a term sheet that complies with the requirements of Rule 434. If the Company elects not to rely on Rule 434, the Company will provide the Underwriters with copies of the form of prospectus, in such numbers as then amended the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the 1933 Act by the close of business in New York City on the second business day immediately succeeding the date of the Pricing Agreement. If the Company elects to rely on Rule 434, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such numbers as the Underwriters may reasonably request, by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act any event occurs as a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the Company, at its own expense, Company promptly will forthwith advise you thereof and will promptly prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any capital stock of the Company prior to the earlier of the Second Closing Date or termination or expiration of the related option nor will the Company declare or pay any dividend or make any other distribution upon the Common Stock payable to stockholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except in either case as contemplated by the Prospectus.
(g) Not later than February 15, 1999 the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense, subject to the provisions of subsection (d) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus, the Incorporated Documents and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(j) During the period of five years hereafter, the Company will furnish you and each of the other Underwriters with a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD; (ii) as soon as practicable after the release thereof, of each material press release in respect of the Company; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(k) The Company will use the net proceeds received by it from the sale of the Shares being sold by it in the manner specified in the Prospectus.
(l) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434, then immediately following the execution of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to the Underwriter Registration Statement (including an amended Prospectus), containing all information so omitted. If required, the Company will prepare and each Selected Dealer through whom Units may be soldfile, without chargeor transmit for filing, a reasonable number Rule 462(b) Registration Statement not later than the date of copies thereofthe execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Company shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(m) The Company will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use all reasonable efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue enter any such stop order suspending the effectiveness of the Registration Statementat any time, the Company will make every use all reasonable effort efforts to obtain the withdrawal lifting of such order at the earliest possible time.
6.02moment. The Company will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or make any amendment or supplement to the Prospectus which in your reasonable judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of which the Underwriter shall not have been advised previously or Common Shares and will use all reasonable efforts to which cause the Underwriter shall reasonably object same to become effective as promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in writing promptly after being so advisedreliance upon such Rule.
6.03. On (c) As soon as practicable, but not later than 45 days after the Effective Date end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), or not later than 90 days after the end of such quarter, if the quarter is the fourth quarter of the Company's fiscal year, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(d) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the prospectus delivery period required under the Act, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act.
(e) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate (which such jurisdictions may include states of the United States, other United States jurisdictions, Canada and Canadian Provinces), will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use all reasonable efforts to obtain the withdrawal thereof.
(f) During the period of five years hereafter, the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the National Association of Securities Dealers, Inc. ("NASD"), New York Stock Exchange, Pacific Stock Exchange or any other securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(g) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Montxxxxxx Xxxurities (which consent may be soldwithheld at the sole discretion of the Montxxxxxx Xxxurities), without chargethe Company, its directors and its officers named in the Prospectus under the heading "Management," will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security, except pursuant to options and plans disclosed in the Prospectus or documents incorporated by reference in the Prospectus or gifts or dispositions by individuals not involving the public market, provided that the recipients of such gifts or dispositions agree to be bound by restrictions on sale as provided in this paragraph (g).
(h) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(i) The Company will use all reasonable efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a reasonable number period of copies thereoffive years after the date hereof.
(j) The Company will list, subject to official notice of issuance, on the New York Stock Exchange and the Pacific Stock Exchange, the Common Shares to be issued and sold by the Company. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Sources: Underwriting Agreement (Wolverine World Wide Inc /De/)
Covenants of the Company. The Company hereby covenants and agrees with the Underwriter that:
6.01. The (a) Immediately following the execution of this Agreement, the Company will endeavor prepare the Prospectus Supplement setting forth the amount of Offered Certificates covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Offered Certificates are to cause be purchased by the Underwriter from the Company, either the initial public offering price or the method by which the price at which the Offered Certificates are to be sold will be determined, the selling concessions and allowances, if any, and such other information as the Company deems appropriate in connection with the offering of such Offered Certificates, but the Company will not file any amendments to the Registration Statement as in effect with respect to become effective and will advise the Underwriter promptly andOffered Certificates, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when or any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Prospectus, without your consent, which will not be unreasonably withheld; the Company will also advise you promptly of the filing or effectiveness of any amendment or supplement to the Registration Statement or the Prospectus or for additional informationProspectus, (iii) and of receipt of notification of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation or threatening of any proceeding for such purposes purpose, and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make use every reasonable effort to prevent the issuance of any such stop order and to obtain the withdrawal of such order at the earliest as soon as possible timeits lifting, if issued.
6.02. The Company will not file any amendment to (b) If, during such period of time after the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date first date of the Registration Statement and thereafter from time to time, for such period public offering of the Offered Certificates as in the written opinion of counsel for the Underwriter a Prospectus prospectus relating to the Offered Certificates is required by law to be delivered in connection with sales by an the Underwriter or dealer, any event occurs as a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies result of which the Prospectus (and of any amendment as then amended or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be soldsupplemented would, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the CompanyUnderwriter and its counsel, include any untrue statement of a material fact, or in the opinion of counsel for the Underwriter, requires that omit to state a material fact be stated in the Prospectus (as then amended or supplemented) in order necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, Company will forthwith promptly prepare and file with the Commission Commission, an appropriate amendment or supplement thereto, which will correct such statement or omission or an amendment that will effect such compliance and will notify you and, upon your request, prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(c) The Company will deliver to each Selected Dealer through whom Units of you as many signed and conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith) as you may reasonably request and will also deliver to you a conformed copy of the Registration Statement and each amendment thereto for each of the Underwriters.
(d) The Company will endeavor, in cooperation with you, to qualify the Offered Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate, and will maintain such qualifications in effect for as long as may be soldrequired for the distribution of the Offered Certificates; provided, without chargehowever, that the Company shall not be required to qualify to do business in any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is now subject to service of process. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Certificates have been qualified as above provided.
(e) To the extent that the Underwriter (i) has provided to the Company Collateral Term Sheets (as hereinafter defined) that the Underwriter has provided to a reasonable number prospective investor, the Company has filed such Collateral term sheets as an exhibit to a report on Form 8-K within two business days of copies its receipt thereof, or (ii) has provided to the Company Structural Term Sheets or Computational Materials (each as defined below) that the Underwriter has provided to a prospective investor, the Company will file or cause to be filed with the Commission a report on Form 8-K containing such Structural Term Sheet and Computational Materials, as soon as reasonably practicable after the date of this Agreement, but in any event, not later than the date on which the Prospectus is filed with the Commission pursuant to Rule 424 of the Rules and Regulations.
Appears in 1 contract
Sources: Underwriting Agreement (Headlands Mortgage Securities Inc)
Covenants of the Company. The Company covenants and agrees ------------------------ with the Underwriter Agent that:
6.01. The (a) During the period in which a prospectus relating to the Stock is required to be delivered under the Act, the Company will endeavor notify the Agent promptly of the time when any subsequent amendment to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; it will prepare and file with the Commission, promptly upon the Agent's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Agent's reasonable opinion, may be necessary or advisable in connection with the distribution of the Stock by the Agent; the Company will not file any amendment or supplement to the Registration Statement or Prospectus unless a copy thereof has been submitted to the Agent a reasonable period of time before the filing and the Agent has not reasonably objected thereto; and it will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus; and the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b) The Company will advise the Agent, promptly after it shall receive notice or for additional informationobtain knowledge thereof, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement, of the suspension of the qualification of the Units Stock for offering or sale in any state or jurisdiction, or of the initiation or threatening of any proceeding for any such purposes purpose; and (iv) within it will promptly use its best efforts to prevent the period of time referred to in Section 6.03 below, of the happening issuance of any event that makes any statement made stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the Stock is required to be delivered under the Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Registration Statement or Stock as contemplated by the provisions hereof and the Prospectus. If during such period any event occurs as a result of which the Prospectus (as then amended or supplemented) supplemented would include an untrue in any statement of a material respect fact or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were madethen existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act or any other lawAct, the Company, at its own expense, Company will forthwith prepare promptly notify the Agent to suspend the offering of Stock during such period and file with the Commission an appropriate amendment Company will amend or supplement theretothe Registration Statement or Prospectus so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify the Stock for sale under the securities laws of such jurisdictions as the Agent designates and to continue such qualifications in effect so long as required for the distribution of the Stock, and except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction.
(e) The Company will furnish to the Underwriter Agent and its counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the period in which a prospectus relating to the Stock is required to be delivered under the Act (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as available and in such quantities as the Agent may from time to time reasonably request and will also furnish copies of the Prospectus to the AMEX in accordance with Rule 153 of the Rules and Regulations.
(f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that satisfies the provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all of its expenses incident to the performance of its obligations hereunder (including, but not limited to, any transaction fees imposed by any governmental or self-regulatory organization with respect to transactions contemplated by this Agreement and any blue sky fees) and will pay the expenses of printing all documents relating to the offering. The Agent will pay its own out-of-pocket costs and expenses incurred in connection with the entering into of this Agreement and the transactions contemplated by this Agreement, including, without limitation, travel, reproduction, printing and similar expenses as well as the fees and disbursements of its legal counsel; provided, however, that if 100,000 shares of Stock are not sold by the Agent pursuant to the terms of this Agreement within one year of the date of this Agreement then the Company will promptly, upon the request of the Agent, reimburse the Agent for the fees and disbursements of the Agent's legal counsel incurred in connection with the entering into of this Agreement and the matters contemplated hereby.
(h) The Company will apply the net proceeds from the sale of the Stock as set forth in the Prospectus.
(i) The Company will not, directly or indirectly, offer or sell any shares of the Company's common stock, par value $.01 per share ("Common Stock") (other than the Stock offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for, or any rights to purchase or acquire, Common Stock during the period from the date of this Agreement through the final Filing Date for the sale of Stock hereunder without (a) giving the Agent at least five business days' prior written notice specifying the nature of the proposed sale and the date of such proposed sale and (b) suspending activity under this program for such period of time as may reasonably be determined by agreement of the Company and the Agent; provided, however, that no such notice -------- ------- and suspension shall be required in connection with the Company's issuance or sale of (i) shares of Common Stock pursuant to any employee or director stock option or benefits plan, stock ownership plan, dividend reinvestment plan or Stockholder Investment Program of the Company now in effect as such plans may be amended from time to time, and (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding on the date hereof.
(j) The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Agent immediately after it shall have received notice or obtain knowledge thereof, of any information or fact that would alter or affect any opinion, certificate, letter and other document provided to the Agent pursuant to Section 5 herein.
(k) Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than a supplement filed pursuant to Rule 424(b) under the Act that contains solely the information set forth in the final paragraph of Section 3 of this Agreement) or (ii) there is filed with the Commission any document incorporated by reference into the Prospectus (other than a Current Report on Form 8-K, unless the Agent shall otherwise reasonably request), the Company shall furnish or cause to be furnished to the Agent forthwith a certificate dated the date of effectiveness of such amendment, or the date of filing with the Commission of such supplement or other document, as the case may be, in form satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 5(f) hereof which were last furnished to the Agent are true and correct at the time of such amendment, supplement, or filing, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 5(f), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(l) Upon commencement of any sale of Stock under this Agreement, and each Selected Dealer through whom Units time that (i) the Registration Statement or the Prospectus is amended or supplemented (other than a supplement filed pursuant to Rule 424(b) under the Act that contains solely the information set forth in the final paragraph of Section 3 of this Agreement) or (ii) there is filed with the Commission any document incorporated by reference into the Prospectus (other than a Current Report on Form 8-K, unless the Agent shall otherwise reasonably request), the Company shall furnish or cause to be furnished forthwith to the Agent and to counsel to the Agent a written opinion of Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, counsel to the Company ("Company Counsel"), or other counsel satisfactory to the Agent, dated the date of effectiveness of such amendment, or the date of filing with the Commission of such supplement or other document, as the case may be, in form and substance satisfactory to the Agent, of the same tenor as the opinion referred to in Section 5(d) hereof, but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion.
(m) Each time that the Registration Statement or the Prospectus shall be soldamended or supplemented to include additional amended financial information or there is filed with the Commission any document incorporated by reference into the Prospectus which contains additional amended financial information, without chargethe Company shall cause KPMG Peat Marwick LLP, or other independent accountants satisfactory to the Agent, forthwith to furnish the Agent a reasonable number letter, dated the date of copies thereofeffectiveness of such amendment, or the date of filing of such supplement or other document with the Commission, as the case may be, in form satisfactory to the Agent, of the same tenor as the letter referred to in Section 5(e) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(n) The Company hereby consents to the Agent trading in the Company's Common Stock for the Agent's own account and at the same time as the Company's sales pursuant to this Agreement.
Appears in 1 contract
Sources: Sales Agency Agreement (Impac Mortgage Holdings Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for that purpose. If the Commission shall enter any such purposes and (iv) within stop order at any time, the period Company will use its best efforts to obtain the lifting of time referred such order at the earliest possible moment. The Company will not file any amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object (as then amended except to the extent any amendment or supplemented) untrue in any material respect or that requires the making of any addition supplement to or change which you object is necessary in the Registration Statement or opinion of counsel to the Company to ensure that the Prospectus (as then amended does not include an untrue statement of a material fact or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, ) or if it which is necessary to amend or supplement not in compliance in all material respects with the Prospectus to Act and the Rules and Regulations.
(b) The Company will fully and completely comply with the Securities Act provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule.
(c) If during such period after the first date of the public offering of the Shares as, in the opinion of your counsel, the Prospectus is required by law to be delivered in
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the effective date of the Registration Statement which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or any other lawdealer, the Company, at its own expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents (other than periodic filings under the Exchange Act) in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate and Canadian securities laws, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriter Representatives: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Xxxxxxxxxx Securities, as a Representative of the Underwriters, or each of the Representatives (which consent may be soldwithheld at the sole discretion of any of the Representatives), without chargethe Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security; provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of stock options and warrants outstanding on the date hereof, as described in the Prospectus (it being agreed that the Company shall not accelerate the exercisability of any such options or grant any waiver or acceleration under the terms of the Stock Restriction Agreement to be entered into by the optionee upon the exercise of such options), and (ii) grant options and issue shares of Common Stock in accordance with its Amended and Restated Stock Option Plan, Stock Incentive Plan or Employee Stock Purchase Plan, as described in the Prospectus or in materials incorporated by reference in the Prospectus.
(i) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a reasonable number period of copies thereoffive years after the date hereof. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and provide you copies of any written advice, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for an amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for any of such purposes purposes, and (iv) within will use its best efforts to prevent the period of time referred to in Section 6.03 below, of the happening issuance of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementsuch order, the Company will make every reasonable effort and, if issued, to obtain as soon as possible the withdrawal of such order at the earliest possible time.
6.02lifting thereof. The Company will not file any amendment has caused to be delivered to you copies of each Preliminary Prospectus, and the Company has consented and hereby consents to the Registration Statement or make any amendment or supplement use of such copies for the purposes permitted by the Act. The Company authorizes the Underwriter and dealers to use the Prospectus of which in connection with the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date sale of the Registration Statement and thereafter from time to time, Units for such period as in the written opinion of counsel for to the Underwriter and the Company the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. In case of the happening, at any time within such period as a Prospectus is required by law under the Act to be delivered in connection with sales by an the Underwriter or a Selected Dealer, dealer of any event of which the Company will deliver to has knowledge and which materially affects the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment Company or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or which in the opinion of counsel for the Underwriter, requires that Company and counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a material fact be stated in supplement to the Prospectus (as then amended or supplemented) in order to make the statements thereintherein not then misleading, in light of the circumstances under which they were made, not misleading, existing at the time the Prospectus is required to be delivered to a purchaser of the Units or if in case it is shall be necessary to amend or supplement the Prospectus to comply with law or with the Securities Act or any other lawRules and Regulations, the Company, at its own expense, Company will notify you promptly and forthwith prepare and file with furnish to you copies of such amended Prospectus or of such supplement to be attached to the Commission an appropriate Prospectus, in such quantities as you may reasonably request, in order that the Prospectus, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material facts necessary in order to make the statements in the Prospectus, in the light of the circumstances under which they are made, not misleading. The preparation and furnishing of any such amendment or supplement thereto, and will furnish to the Registration Statement or amended Prospectus or supplement to be attached to the Prospectus shall be without expense to the Underwriter, except that in case the Underwriter and each Selected Dealer through whom is required, in connection with the sale of the Units may be sold, without charge, to deliver a reasonable number Prospectus nine months or more after the effective date of copies thereof.the Registration Statement,
Appears in 1 contract
Sources: Underwriting Agreement (Rosedale Decorative Products LTD)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised. MxXxxxxx & Company, Inc. February 17, 2004 Page 9
(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by selected dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
6.03. (e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers selected dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after MxXxxxxx & Company, Inc. February 17, 2004 Page 10 the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(h) During the period of five years hereafter, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission if such report is not immediately available on the Commission’s EXXXX website and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Covenants of the Company. The Company hereby covenants and agrees with the Underwriter thatAgent as follows:
6.01. The Company will endeavor to cause (a) From the time the Registration Statement to become Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective and will advise up to the Underwriter promptly andClosing Date, if requested the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any information regarding the Company or the Bank contained in Sales Information (as such term is defined in Section 6 hereof) authorized by the UnderwriterCompany for use in connection with the Offering, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) shall not contain an untrue statement of any request by the Commission for amendments a material fact or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the covenant in this Section 4(a) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Company or the Bank by the Agent expressly regarding the Agent for use in the Prospectus under the captions "Market for Common Stock and Dividends" and "The Offering -- Marketing Arrangements."
(b) At any time after the date the Registration Statement is declared effective, the Company shall not file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement, and shall not file any amendment or supplement to which the Agent or its counsel shall reasonably object.
(c) The Company shall notify the Agent in writing of any violation of the articles of incorporation and bylaws of the Company and the charter and bylaws of the Bank at any time after the date hereof and prior to the Closing Date. Unless waived in writing by the Agent, which waiver shall not be unreasonably withheld, the Company shall not be in violation of its articles of incorporation or bylaws, and the Bank shall not be in violation of its charter or bylaws, at any time after the date hereof and prior to the Closing Date.
(d) The Company and the Bank shall use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and shall immediately notify the Agent upon receipt of any information concerning any of the following events: (i) when any post-effective amendment to the Registration Statement has become effective; (ii) when any comments from the Commission or any other governmental entity are issued with respect to the Registration Statement or the transactions contemplated by this Agreement; (v) when any request is made by the Commission or any other governmental entity for any amendment or supplement to the Registration Statement or for any other additional information; (vi) when the Commission or any other governmental entity issues any order or takes or threatens any action xx xuspxxx xhe Offering, the effectiveness of the Registration Statement, or the use of the Prospectus; (vii) the issuance by the Commission or any other governmental authority of any stop order suspending the effectiveness of the Registration Statement, or of the initiation or threat of initiation of any proceedings for any such purpose; or (viii) the occurrence of any event mentioned in paragraph (h) below; and the Company and the Bank shall take every reasonable effort to prevent the issuance by the Commission, the OTS or any state authority of any order referred to in (vi) and (vii) above, and if any such order shall at any time be issued, to obtain the lifting thereof at the earliest possible time.
(e) The Company shall deliver to the Agent and to its counsel two conformed copies of the Registration Statement as originally filed and of each amendment or supplement thereto. The Company shall also deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD filings.
(f) The Company shall furnish to the Agent, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 ("1934 Act"), such number of copies of such Prospectus as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act ("1934 Act Regulations"); and the Company authorizes the Agent to use the Prospectus in any lawful manner in connection with the sale of the Shares.
(g) The Company and the Bank shall comply with any and all terms, conditions, requirements and provisions with respect to the transactions contemplated hereby imposed by the Commission to be complied with subsequent to the Closing Date; and when the Prospectus is required to be delivered, the Company and the Bank shall comply, at their own expense, with all requirements imposed upon them by the Commission, including, without limitation, Rule 10b- 5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(h) If, at any time during the period when the Prospectus is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to comply with make the Securities Act Registration Statement or any other lawProspectus not misleading in light of the circumstances existing at the time the Prospectus is delivered, the CompanyCompany shall, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will the OTS and furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, Agent a reasonable number of copies thereofof an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance satisfactory to the Agent and its counsel after a reasonable time for review) which shall amend or supplement the Registration Statement or Prospectus, so that as amended or supplemented the Registration Statement and the Prospectus shall not contain an untrue statement xx x maxxxxxl fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading.
(i) The Company shall each timely furnish to the Agent such information with respect to the Company and the Bank as the Agent may from time to time reasonably request.
(j) The Company shall take all necessary action required to register the Shares for offering and sale by the Company or to exempt such Shares from registration and to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the Blue Sky Laws of such jurisdictions as the Agent may reasonably request; provided, however, that the Company shall not be obligated to file any general consent to service of process or to quality to do business in any jurisdiction in which it is not so qualified; and in each jurisdiction where any of the Shares shall have been qualified or registered the Company shall prepare and file, at its own expense, such statements and reports as may be required by the laws of such jurisdiction.
(k) The Company shall not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the prior written consent of the Agent, any shares of Common Stock other than in connection with any plan or arrangement described in the Prospectus.
(l) The Company shall cause each officer of the Company specified by the Agent and each director of the Company to furnish to the Agent, on or prior to the date of this Agreement, an agreement pursuant to which each such person shall agree not to sell or otherwise dispose of, or offer or contract to sell any shares of Common Stock or any securities convertible with respect to the Common Stock for 180 days after the Closing Date, except with the Agent's prior written consent (which consent shall not be unreasonably withheld);
(m) The Common Stock shall be the subject of an effective registration statement under Section 12(g) of the 1934 Act as of the Closing Date and the Company shall maintain the effectiveness of such registration for not less than three years.
(n) During the period during which the Common Stock is registered under the 1934 Act or for three years from the Closing Date, whichever period is greater, the Company shall furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report in accordance with Rule 14a-3(b) of the 1934 Act Regulations.
(o) During the period of three years from the Closing Date, the Company shall furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (xxxludxxx, but not limited to, reports on Forms 10-K, 10-Q and 8-K and all proxy statements and annual reports to stockholders), (ii) if requested, a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(p) The Company and the Bank shall use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(q) The Company shall not distribute any prospectus (as defined in Section 2(10) of the 1933 Act) other than the Prospectus and the Sales Information (as defined in Section 6 hereof) in connection with the offer and sale of the Shares without first notifying the Agent.
(r) The Company shall use its best efforts to (i) encourage and assist two market makers to establish and maintain a market for the Shares and (ii) list the Shares on a national securities exchange or on The Nasdaq Stock Market effective on or prior to the Closing Date.
(s) As described in the Prospectus, the Company shall deposit all funds received from subscribers with the Subscription Agent until the Closing Date and the satisfaction of all conditions precedent to the release of the Shares, or until refunds of such funds have been made to the persons entitled thereto.
(t) The Company shall take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(u) From the date of this Agreement up to the Closing Date, the records of stockholders shall be accurate, reliable and complete in all material respects; and the Agent, who shall assist the Company in its allocation of the Shares in the event of an oversubscription in the Subscription Offering, shall have no liability to any person for the accuracy, reliability and completeness of such records or for any denial or reduction of a subscription or order to purchase Common Stock, whether as a result of a properly calculated allocation pursuant to the instructions of the Company otherwise, based upon such records.
(v) The Company shall comply with the provisions of Rule 158 of the 1933 Act Regulations.
(x) The Company shall file with the Commission, within the required time period, a Report of Sales of Securities and Use of Proceeds Therefrom on Form SR pursuant to Rule 463 of the 1933 Act Regulations.
(x) The Company shall use all reasonable efforts to comply with, or cause to be complied with, the conditions precedent to the several obligations of the Agent specified in Section 5 hereof.
(y) The Company shall, and shall cause the Bank to, conduct its businesses in material compliance with all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the Commission, the OTS and the FDIC.
Appears in 1 contract
Covenants of the Company. The Company covenants and ------------------------ agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in your judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of the Notes and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the applicable period referred to in Section 10(a)(3) of the Act or Rule 174 of the Prospectus (Rules and Regulations during which a prospectus relating to the Notes is required to be delivered under the Act any event occurs, as then amended a result of which the Prospectus, including any amendments or supplemented) supplements, would include an untrue statement of a material fact, or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after the applicable time period, the Company upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act and Rule 174 of the Rules and Regulations, as applicable.
(d) As soon as practicable, but not later than 45 days (or 90 days if such quarter is the fiscal year end) after the end of the first quarter ending after one year following the effective date of the Registration StatementStatement (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the applicable period referred to in Section 10(a)(3) of the Act or Rule 174 of the Rules and Regulations, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the Act and the Rules and Regulations.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Notes for sale under (or obtain exemptions from the application of) the Blue Sky and Canadian securities laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Notes, except that the Company will not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Notes for offering; sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years after the date of this Agreement, the Company will furnish to the Underwriter Representatives and their counsel and, upon request of the Representatives, to each Selected Dealer through whom Units of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the Notes are released by you for sale to the public, without your prior written consent (which consent may be soldwithheld at your sole discretion), without chargethe Company will not, other than as disclosed in the Prospectus, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security of the Company, except, in each case, to grant options or to sell shares of Common Stock pursuant to the Company's 1996 Equity Participation Plan or the Company's Employee Stock Option Plan, each as described in the Prospectus, to grant options or sell Common Stock in connection with the offering and sale of the Common Shares or to grant options or to sell or issue shares of Common Stock in connection wiht the Merger Agreement.
(i) The Company will apply the net proceeds of the sale of the Notes sold by it in accordance with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to cause the Notes to be sold by it to be listed as a reasonable number national market system security on the Nasdaq National Market. You, on behalf of copies thereofthe Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter Underwriters that:
6.01. The (a) If the Registration Statement has not yet been declared effective the Company will endeavor use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will advise provide evidence satisfactory to you of such timely filing. If the Underwriter promptly andCompany elects to rely on Rule 434, if requested by the Underwriter, Company will confirm such advice in writing prepare and file a term sheet that complies with the requirements of Rule 434.
(i) when the Registration Statement has and any amendments thereto become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments any amendment of or supplements supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Units ADSs for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purposes and (iv) within that purpose. If the period of time referred Commission shall propose or enter a stop order at any time, the Company will make every reasonable effort to in Section 6.03 below, of prevent the happening issuance of any event that makes such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any statement made in amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the ADSs is required to be delivered under the Securities Act any event shall have occurred as a result of which the Prospectus as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change supplemented would, in the Registration Statement judgment of the Underwriters or the Prospectus (as then amended Company include an untrue statement of a material fact or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or therein, in the light of the necessity circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus (as then amended or supplemented) Registration Statement to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementRegulations, the Company will make every reasonable effort notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to obtain the withdrawal of you) which will correct such order at the earliest possible time.
6.02. The Company statement or omission and will not file use its best efforts to have any amendment to the Registration Statement or make declared effective as soon as possible.
(c) The Company will promptly deliver to you one manually signed copy of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any amendment or supplement preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, in such quantities as you may from time to time reasonably request and, if the delivery of a prospectus is required at any time prior to the Prospectus expiration of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly nine months after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from if at such time to time, for such period any events shall have occurred as in the written opinion a result of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of which the Prospectus (as then amended and supplemented would include an untrue statement of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or or, if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Securities Act Act, to notify the Underwriters and, upon the Underwriters' request, to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any other lawUnderwriter is required to deliver a prospectus in connection with sales of any of the ADSs at any time nine months or more after the Effective Date of the Registration Statement if such information contained therein is not of a date more than sixteen(16) months old, upon the Underwriters' request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Underwriters may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the ADSs for offering and sale under the securities laws relating to the offering or sale of the ADSs of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earning statement (in form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the Prospectus (the "Lock-up Period"), the Company, at will not, directly or indirectly, without the prior written consent of Bear, Xxxxxxx & Co. Inc., issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain an open "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, ADSs, other securities, cash or other consideration) or otherwise dispose (or publicly announce its intention to do any of the foregoing) of, directly or indirectly, any Common Stock, ADSs or other capital stock of the Company or any securities convertible into, exercisable for or exchangeable for Common Stock, ADSs or other capital stock of the Company that the Company currently beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, or may beneficially own, directly or indirectly in the future, other than the Company's sale of Common Stock and the related ADSs hereunder the Company's issuance of Common Stock upon the exercise of presently outstanding stock options or warrants or the grant by the Company of additional employee, officer, director or consultant stock options pursuant to stock option plans as in effect on the date hereof and the Company will obtain the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by you and listed on Schedule II attached hereto not to engage in any of the aforementioned transactions on their own expensebehalf, except as permitted by the terms of the lock-up agreements agreed to by you and your counsel. Nothwithstanding the preceding sentence, the Company may also issue shares of Common Stock in connection with the acquisitions of other businesses, regardless of whether completed as a merger or a purchase of stock or assets, if the terms of these issuances provide that any recipient of such shares of Common Stock will forthwith prepare not, directly or indirectly, without your prior written consent, offer, sell, contract to sell, swap, make any short sale, pledge, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, grant any option to purchase or otherwise dispose (or publicly announce such recipient's intention to do any of the foregoing) of any shares of Common Stock or other capital stock of the Company, or any securities convertible into, or exercisable or exchangeable for, Common Stock or any other capital stock of the Company prior to the expiration of the Lock-up Period.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you copies of (i) all reports to its shareholders; and file (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission an appropriate amendment or supplement thereto, any national securities exchange.
(h) The Company will apply the proceeds from the sale of the ADSs as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its reasonable best efforts to ensure the listing of the ADSs on the New York Stock Exchange and to arrange for the ADSs to be accepted for settlement through the facilities of The Depository Trust Company ("DTC") in accordance with the Deposit Agreement.
(j) The Company will comply with the Deposit Agreement so that ADRs evidencing ADSs will be executed by the Depositary and delivered to the Underwriters at each applicable Closing Date.
(k) The Company will not (and will furnish not cause its affiliates to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the Underwriter price of any security of the Company to facilitate the sale or resale of the ADSs and each Selected Dealer through whom Units may be soldneither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act), without charge, a reasonable number of copies thereofwill take any action prohibited by Regulation M under the Exchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Tricom Sa)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice Representatives in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effective, comments of the Commission; (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, ; (iii) when the Registration Statement shall have become effective; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue enter any such stop order suspending the effectiveness of the Registration Statementat any time, the Company will make every reasonable effort use its best efforts to obtain the withdrawal lifting of such order at the earliest possible time.
6.02moment. The Company will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which the Representatives have not been furnished with a copy a reasonable time prior to such filing or to which the Representatives reasonably object in writing or which is not in material compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon the Representatives' request, any amendments or supplements to the Registration Statement or make the Prospectus which in the Company's and the Representatives' reasonable judgment may be necessary or advisable to enable the Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any amendment or supplement time within the nine-month period referred to in Section 10(a)(3) of the Act during which a prospectus relating to the Prospectus Common Shares is required to be delivered under the Act any event
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, will forthwith prepare and file with but only for the Commission an appropriate amendment or supplement theretonine-month period referred to in Section 10(a)(3) of the Act, and will furnish to the Underwriter Underwriters or mail copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents, in each Selected Dealer through whom Units case as soon as available and in such quantities as the Representatives may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with the Representatives and their counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as the Representatives designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be soldrequired to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or overt threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with the Representatives' cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Representatives: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report to Stockholders of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10-QSB, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days from the date of the Prospectus, without chargethe prior written consent of Hoak Xxxexxxxx Wesnxxxx & Xo. (the giving or withholding of such written consent being in the sole discretion of Hoak Xxxexxxxx Xxxnxxxx & Xo.), the Company will not issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its Common Stock or other equity security, except for equity securities used as consideration in acquisitions of the assets, stock, intellectual property or business of another person or entity, or the grant of options in the ordinary course of business pursuant to the Company's 1997 Stock Option Plan or the issuance of shares of Common Stock in the ordinary course of business pursuant to the Company's Recognition and Retention Plan and Trust or in accordance with the Company's 401(k) plan, as described in the Prospectus.
(i) The Company will apply the net proceeds of the sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of the State of California (and thereby permit market making transactions and secondary trading in the Company's Common Stock in California), will comply with such Blue Sky laws and will use its best efforts to maintain such qualifications, registrations and exemptions in effect for a reasonable number period of copies thereofthree years after the date hereof.
Appears in 1 contract
Covenants of the Company. the MHC and the Bank. The Company, the MHC and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company covenants and agrees has filed the Registration Statement with the Underwriter that:
6.01Commission. The Company will endeavor not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) The MHC has filed the Conversion Application with the OTS. The Bank will not, at any time after the Conversion Application is approved by the OTS, file any amendment or supplement to such Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company has filed the Holding Company Application with the OTS. The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to become be declared effective by the Commission and any post-effective amendment to the Conversion Application to be approved by the OTS and will advise immediately upon receipt of any information concerning the Underwriter promptly and, if requested by events listed below notify the Underwriter, will confirm such advice in writing Agent: (i) when the Registration Statement Statement, as amended, has become effective and when any amendment thereto thereafter becomes effective, ; (ii) when the Conversion Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended, has been approved by the OTS; (iv) of any comments from the Commission, the OTS or any other governmental entity with respect to the Conversion or the transactions contemplated by this Agreement; (v) of the request by the Commission Commission, the OTS or any other governmental entity for amendments any amendment or supplements supplement to the Registration Statement, the Conversion Application or the Holding Company Application or for additional information; (vi) of the issuance by the Commission, the OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or for additional informationany other filing of the Company or the Bank under the Conversion Regulations, or other applicable law, or the threat of any such action; (iiivii) of the issuance by the Commission Commission, the OTS or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the suspension of qualification Conversion Application or Holding Company Application, or of the Units for offering initiation or sale in any state threat of initiation or jurisdiction, or the initiation threat of any proceeding proceedings for any such purposes and purpose; or (ivviii) within the period of time referred to in Section 6.03 below, of the happening occurrence of any event that makes any statement made mentioned in the Registration Statement or the Prospectus paragraph (as then amended or supplementedh) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawbelow. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementThe Company, the Company MHC and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the OTS or any state authority of any such order and, if any such order shall at any time be issued, (ii) to obtain the withdrawal of such order lifting thereof at the earliest possible time.
6.02. (e) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected DealerCompany, the Company MHC and the Bank will deliver to the Underwriter Agent and each Selected Dealer through whom Units may be sold, without charge, as many to its counsel two conformed copies of the Prospectus (Registration Statement, the Conversion Application and the Holding Company Application, as originally filed and of any each amendment or supplement thereto) as they may reasonably request, including all exhibits. The Company consents Further, the Company, the MHC and the Bank will deliver such additional copies of the foregoing documents to counsel to the use Agent as may be required for any NASD and blue sky filings.
(f) The Company, the MHC and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(g) The Company, the MHC and the Bank will comply with any amendment and all material terms, conditions, requirements and provisions with respect to the Conversion and the transactions contemplated thereby imposed by the Commission, the OTS, the Conversion Regulations or supplement thereto) the OTS, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, the Company, the MHC and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the OTS, the Conversion Regulations or the OTS, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in shares of Common Stock during such period in accordance with the provisions of hereof and the Securities Act and with Prospectus.
(h) If, at any time during the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as when the Prospectus relating to the Shares is required by law to be delivered in connection therewith. If during such period of time delivered, any event shall occur that in the judgment of relating to or affecting the Company, the MHC or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the UnderwriterCompany, requires the MHC and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will at their expense, prepare and file with the Commission and the OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement . For the Prospectus to comply with the Securities Act or any other lawpurpose of this Agreement, the Company, at the MHC and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(i) The Company, the MHC and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its own expenseofficers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company, the MHC and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify to do business in any jurisdiction in which it is not so qualified. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will forthwith prepare make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(j) The liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the Commission an appropriate amendment or supplement theretorequirements of the OTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account which shall have a priority superior to that of the holders of shares of Common Stock in the event of a complete liquidation of the Bank.
(k) The Company, the MHC and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 90 days after the Closing Date, without the Agent's prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus.
(l) The Company shall register its Common Stock under Section 12(g) of the 1934 Act concurrent with the Offerings pursuant to the Plan and shall request that such registration be effective upon completion of the Conversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the OTS.
(m) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, stockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(n) During the period of three years from the date hereof, the Company will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without chargeAgent: (i) as soon as practicable after such information is publicly available, a reasonable number copy of copies thereofeach report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-K, 10- Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(o) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(p) Other than as permitted by the Conversion Regulations, the HOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company, the MHC nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(q) The Company will use its best efforts to (i) encourage and assist two market makers to establish and maintain a market for the Shares and (ii) list the Shares on a national or regional securities exchange or on the Nasdaq National Market effective on or prior to the Closing Date.
(r) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offerings on an interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offerings in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(s) The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA within 90 days of the Closing Date.
(t) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(u) Neither the Bank nor the MHC will amend the Plan of Conversion without notifying the Agent prior thereto.
(v) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable.
(w) Prior to the Closing Date, the Company, the MHC and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement, the Conversion Application and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(x) Prior to the Closing Date, the Company will have received approval of the OTS to acquire the Bank.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and effective. The Company will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement (and make every reasonable effort to obtain the withdrawal of such order as early as possible) or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or to its knowledge threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you promptly of any request of the period Commission for amendment or supplement of time referred to in Section 6.03 belowthe Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information, and will not file any amendment or supplement to the Registration Statement, to any preliminary prospectus or to the Prospectus of which you have not been furnished with a copy prior to such filing or to which you reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act, any event that makes occurs as a result of which the Prospectus, including any amendments or supplements, would include an untrue statement made in the Registration Statement of a material fact, or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriter in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the CompanyCompany promptly will advise you thereof and will promptly prepare and, at its own expenseif required pursuant to Rule 424(b), will forthwith prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance.
(c) Neither the Company nor any of its Subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(d) The Company will not declare or pay any dividend or make any other distribution upon the Common Stock payable to shareholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except as contemplated by the Prospectus.
(e) Not later than 90 days after the close of the period covered thereby, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act and Rule 158 thereunder.
(f) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense (and consents to the use thereof), subject to the provisions of subsection (b) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(g) The Company will cooperate with the Underwriter in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate in writing, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(h) During the period of three years after the date of the Pricing Agreement, the Company will furnish to the Underwriter a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with the Commission, any securities exchange or the National Association of Securities Dealers, Inc. ("NASD") and (ii) as soon as available, of each Selected Dealer through whom Units may be soldreport of the Company mailed to any class of its securityholders.
(i) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A, then immediately following the execution and delivery of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended prospectus), containing all information so omitted.
(k) The Company will comply with all of the provisions of each undertaking contained in the Registration Statement.
(l) The Company will not, without chargethe prior written consent of the Underwriter, which consent shall not be unreasonably withheld, sell, contract to sell or otherwise dispose of any equity security of the Company (including shares of Common Stock) for a reasonable number period of copies thereof120 days after the effective date of the Registration Statement, other than (i) Common Stock issued and sold to the Underwriter pursuant to this Agreement, (ii) Common Stock issued upon exercises of outstanding stock options and (iii) Common Stock issued upon conversion of the Company's outstanding Series C Preferred Stock, as described in the Prospectus. The Company will cause each of its executive officers and directors, and certain beneficial owners of five percent of the Company's Common Stock, except for the Independent Bankshares, Inc. Employee Stock Ownership/401(k) Plan, to deliver to the Underwriter on or before the date of this Agreement an agreement satisfactory in form and substance to the Underwriter and its counsel, whereby each agrees, for a period of 120 days after the effective date of the Registration Statement, not to offer, sell or otherwise dispose of any shares of Common Stock without the prior written consent of the Underwriter ("LOCK-UP LETTER").
Appears in 1 contract
Sources: Underwriting Agreement (Independent Bankshares Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause notify the Underwriter immediately, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective(including any post-effective amendment), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iiiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the withdrawal of such order lifting thereof at the earliest possible timemoment.
6.02. (b) The Company will not give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or make any amendment or supplement to the Prospectus of (including any revised prospectus which the Company proposes for use by the Underwriter shall in connection with the offering of the Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not have been advised previously such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, whether pursuant to the 1933 Act, the 1934 Act or otherwise), will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of or counsel for the Underwriter a Prospectus is required by law shall object.
(c) The Company has delivered to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company your counsel one signed copy and will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the Underwriter may reasonably request.
(d) The Company will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (and of any amendment as amended or supplement theretosupplemented) as they the Underwriter may reasonably request. The Company consents to request for the use of such Prospectus (purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and of any amendment or supplement thereto) in accordance with the provisions regulations of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. Commission thereunder.
(e) If during such period of time any event shall occur that in the judgment as a result of the Companywhich it is necessary, or in the opinion of counsel for the Underwriter, requires that to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is required to be delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is required to be delivered to a purchaser, not misleading, or if it is necessary to amend or supplement and the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and Company will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereofof such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualifications in effect for a period of not less than one year from the effective date of this Agreement. The Company will promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) Immediately following the execution of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 424(b) of the 1933 Act Regulations, copies of a supplement to the Prospectus containing the terms of the Securities and such other information as the Underwriter and the Company deem appropriate.
(j) From the date of this Agreement until Closing Time, the Company will not, without the prior written consent of the Underwriter, directly or indirectly, sell, offer to sell, contract to sell, or otherwise dispose of, or announce the offering of, any Securities or securities similar to the Securities, or any securities convertible into or exchangeable or exercisable for any Securities or any such similar securities, except for Securities sold to the Underwriter pursuant to this Agreement.
(k) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its reasonable best efforts to cause the Registration Statement to become effective and will advise you immediately, and confirm the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing writing, (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for that purpose. If the Commission shall enter any such purposes and (iv) within stop order at any time, the period Company will use its reasonable best efforts to obtain the lifting of time referred such order at the earliest possible moment. The Company will not file any amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance in all material respects with the Act and the Rules and Regulations.
(as then amended or supplementedb) untrue in If at any material respect or that requires time within nine months of the making effectiveness of any addition to or change in the Registration Statement when a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case you or any Underwriter, as the case may be, is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at your expense or the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) The Company will furnish to you, as soon as available, copies of the Registration Statement (four of which final Registration Statement will be signed and which will include all exhibits), each Preliminary Prospectus, the Prospectus and any amendments or supplements to such documents, including any prospectus prepared to permit compliance with Section 10(a)(3) of the Securities Act of 1933 (four of which will include all exhibits) all in such quantities as you may from time to time reasonably request.
(d) Prior to the Second Closing Date, the Company will not repurchase or otherwise acquire any of the Company's common stock or declare or pay any dividend or make any other law. If at any time distribution upon its common stock.
(e) As soon as practicable, but not later than 45 days after the Commission shall issue any stop order suspending end of the effectiveness first quarter ending after one year following the effective date of the Registration Statement, the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(f) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the first nine months after the effective date of the Registration Statement, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(g) The Company will use its best efforts to qualify the Common Shares for offering and sale under the securities laws of such jurisdictions as you may designate and continue such qualifications in effect for so long as may be required for purposes of the distribution of the Common Shares, except that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. In each jurisdiction in which the Common Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonably required by the laws of such jurisdictions.
(h) The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its reasonable best efforts to obtain the Commission an appropriate amendment or supplement theretowithdrawal thereof.
(i) During the period of five years hereafter, the Company will furnish to its stockholders as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent certified public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you or upon your request as Representative of the Underwriter Underwriters, to each of the other Underwriters, as the case may be: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and changes in financial position for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10- QSB, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its common stock; (iv) every material press release and every material news item or article in respect of the Company or its affairs which was generally released to stockholders or prepared by or on behalf of the Company; and (v) any additional information of a public nature concerning the Company, or its business which you may reasonably request. During such five (5) year period, if the Company shall have active subsidiaries, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(j) During the period of 180 days after the date hereof, without your prior written consent, individually or as Representative of the Underwriters, the Company will not other than pursuant to outstanding stock options and the terms of other employee benefit plans disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable for its common stock or other equity security under circumstances where such securities may be sold into the public market during such period.
(k) The Company has caused each officer, director, owner of 10% or more of the outstanding common stock of the Company and each Selected Dealer through person to whom Units the Company has granted an option pursuant to the Company's stock option plan which is exercisable within the period ending 180 days after this agreement, 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 stock or derivative of common stock owned by such person (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this agreement, directly or indirectly, except with the prior written consent of Xxxxx Financial Services, Inc.
(l) Subject to notice of inclusion, the Company will cause the Common Shares to be included in the NASDAQ SmallCap Market.
(m) The Company will apply the net proceeds from the sale of the Common Shares being sold by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be soldthe same entity as the transfer agent) for its common stock.
(o) If the transactions contemplated hereby are not consummated for any reason, without chargethe Company will pay the several Underwriters for all out-of-pocket expenses (including fees and disbursement of counsel) incurred by the Underwriters in investigating and preparing to market or marketing the Common Shares, up to a reasonable number maximum of copies thereof$ ____________.
Appears in 1 contract
Sources: Underwriting Agreement (Eldorado Artesian Springs Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its reasonable best efforts to cause the Registration Statement to become effective and will advise you immediately, and confirm the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing writing, (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement shall have become effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for that purpose. If the Commission shall enter any such purposes and (iv) within stop order at any time, the period Company will use its reasonable best efforts to obtain the lifting of time referred such order at the earliest possible moment. The Company will not file any amendment or supplement to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance in all material respects with the Act and the Rules and Regulations.
(as then amended or supplementedb) untrue in If at any material respect or that requires time within nine months of the making effectiveness of any addition to or change in the Registration Statement when a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case you or any Underwriter, as the case may be, is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Company upon request, but at your expense or the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) The Company will furnish to you, as soon as available, copies of the Registration Statement (four of which final Registration Statement will be signed and which will include all exhibits), each Preliminary Prospectus, the Prospectus and any amendments or supplements to such documents, including any prospectus prepared to permit compliance with Section 10(a)(3) of the Securities Act of 1933 (four of which will include all exhibits) all in such quantities as you may from time to time reasonably request.
(d) Prior to the Second Closing Date, the Company will not repurchase or otherwise acquire any of the Company's common stock or declare or pay any dividend or make any other law. If at any time distribution upon its common stock.
(e) As soon as practicable, but not later than 45 days after the Commission shall issue any stop order suspending end of the effectiveness first quarter ending after one year following the effective date of the Registration Statement, the Company will make every reasonable effort generally available to obtain its security holders an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement and thereafter from time to time, for which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(f) During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the first nine months after the effective date of the Registration Statement, will forthwith prepare furnish to you or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may request, for the purposes contemplated by the Act.
(g) The Company will use its best efforts to qualify the Common Shares for offering and sale under the securities laws of such jurisdictions as you may designate and continue such qualifications in effect for so long as may be required for purposes of the distribution of the Common Shares, except that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. In each jurisdiction in which the Common Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonably required by the laws of such jurisdictions.
(h) The Company will advise you promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its reasonable best efforts to obtain the Commission an appropriate amendment or supplement theretowithdrawal thereof.
(i) During the period of five years hereafter, the Company will furnish to its stockholders as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent certified public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you or upon your request as Representative of the Underwriter Underwriters, to each of the other Underwriters, as the case may be: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and changes in financial position for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10- QSB, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its common stock; (iv) every material press release and every material news item or article in respect of the Company or its affairs which was generally released to stockholders or prepared by or on behalf of the Company; and (v) any additional information of a public nature concerning the Company, or its business which you may reasonably request. During such five (5) year period, if the Company shall have active subsidiaries, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(j) During the period of 180 days after the date hereof, without your prior written consent, individually or as Representative of the Underwriters, the Company will not other than pursuant to outstanding stock options and the terms of other employee benefit plans disclosed in the Prospectus issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable for its common stock or other equity security under circumstances where such securities may be soldsold into the public market during such period.
(k) The Company has caused each officer and director to whom the Company has granted an option pursuant to the Company's stock option plan which is exercisable within the period ending 180 days after this agreement, without chargeto furnish to you, on or prior to the date of this agreement, a reasonable number 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 copies thereofany shares of common stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for common stock or derivative of common stock owned by such person (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this agreement, directly or indirectly, except with the prior written consent of Xxxxx Financial Services, Inc.
(l) Subject to notice of inclusion, the Company will cause the Common Shares to be included in the NASDAQ SmallCap Market.
(m) The Company will apply the net proceeds from the sale of the Common Shares being sold by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its common stock.
(o) If the transactions contemplated hereby are not consummated for any reason, the Company will pay the several Underwriters for all out-of-pocket expenses (including fees and disbursement of counsel) incurred by the Underwriters in investigating and preparing to market or marketing the Common Shares, up to a maximum of $25,000.
Appears in 1 contract
Sources: Underwriting Agreement (Eldorado Artesian Springs Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes purposes, and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. XxXxxxxx & Company, Inc. March 6, 2006
(b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
6.02. (c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as XxXxxxxx & Company, Inc. March 6, 2006 you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will file all reports and other information that it is required to file after the Closing Date pursuant to Section 13 or Section 15(d), as the case may be, of the Exchange Act as necessary to permit the Underwriter to serve, in its sole discretion, as a market maker with respect to the Common Stock.
(h) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(i) During the period of five years after the Closing Date, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Covenants of the Company. The Company covenants and ------------------------ agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Prospectus, properly completed, with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Company will promptly advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice you in writing (i) when of the Registration Statement has become effective and when receipt of any amendment thereto thereafter becomes effectivecomments of the Commission, (ii) of any request by of the Commission for amendments amendment of or supplements supplement to the Registration Statement (either before or after it becomes effective), any Preliminary Prospectus or the Prospectus or for additional information, (iii) when the Registration Statement, or any amendment thereto, shall have become effective, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension institution of qualification any proceedings for that purpose. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the Units for offering earliest possible moment. The Company will not file any amendment or sale in supplement to the Registration Statement (either before or after it becomes effective), any state or jurisdiction, Preliminary Prospectus or the initiation Prospectus of which you have not been furnished with a copy a reasonable time prior to such filing or to which you reasonably object or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon your request, any proceeding for such purposes and (iv) within the period of time referred amendments or supplements to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (which in your reasonable judgment may be necessary or advisable to enable the several Underwriters to continue the distribution of the Common Shares and will use its best efforts to cause the same to become effective as then amended or supplemented) untrue in any material promptly as possible. The Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect or that requires the making of any addition to or change in information omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in Section 10(a)(3) of the Act during which a prospectus relating to the Common Shares is required to be delivered under the Act any event occurs, as a result of which the Prospectus, including any amendments or the Prospectus (as then amended supplements, would include an untrue statement of a material fact, or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or of the necessity if it is necessary at any time to amend the Prospectus, including any amendments or supplement the Prospectus (as then amended or supplemented) supplements, to comply with the Securities Act or the Rules and Regulations, the Company will promptly advise you thereof and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and, in case any other law. If Underwriter is required to deliver a prospectus after such nine-month period, the Company upon request, but at any time the Commission shall issue any stop order suspending expense of such Underwriter, will promptly prepare such amendment or amendments to the effectiveness Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end of the first quarter ending after one year following the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), the Company will make every reasonable effort generally available to obtain its security holders and to you an earnings statement (which need not be audited) covering a period of 12 consecutive months beginning after the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date effective date of the Registration Statement which will satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(e) Not later than 4:00 p.m. on the business day following the date the Common Shares are released by the Underwriters for sale to the public, the Company shall deliver or cause to be delivered copies of the Prospectus in such quantities and thereafter from time to time, for at such places as the Representatives shall request. During such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawdealer, the Company, at its own expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will forthwith prepare furnish to you and the Selling Stockholder or mail to your order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all exhibits, amendments and supplements to any such documents in each case as soon as available and in such quantities as you and the Selling Stockholder may request, for the purposes contemplated by the Act. The Company will furnish or cause to be furnished to you copies of all reports on Form SR required by Rule 463 of the Rules and Regulations.
(f) The Company shall cooperate with you and your counsel in order to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the Blue Sky laws of such jurisdictions as you designate, will comply with such laws and will continue such qualifications, registrations and exemptions in effect so long as reasonably required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to file with a general consent to service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise you promptly of the Commission an appropriate amendment suspension of the qualification or supplement theretoregistration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company, with your cooperation, will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish to the Underwriter Representatives and, upon request of the Representatives, to each of the other Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicable after the filing thereof, copies of each Selected Dealer through whom Units proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, the NASD or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(h) During the period of 180 days after the date of the Prospectus, without the prior written consent of either Xxxxxxxxxx Securities or each of the Representatives (which consent may be soldwithheld at the sole discretion of the Xxxxxxxxxx Securities or the Representatives, without chargeas the case may be), the Company will not, directly or indirectly, other than pursuant to outstanding stock options and warrants disclosed in the Prospectus, issue, offer, sell, grant options to purchase or otherwise dispose of any of the Company's equity securities or any other securities convertible into or exchangeable with its equity securities; provided, the Company may grant options to purchase any of the Company's equity securities to any officer or employee of the Company who delivers to Xxxxxxxxxx Securities a reasonable number letter substantially similar to the letters described in Section 7(c)(x) hereof.
(i) The Company will apply the net proceeds of copies thereofthe sale of the Common Shares sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to designate the Common Stock for quotation on The NASDAQ National Market. You, on behalf of the Underwriters, may, in your sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Sources: Underwriting Agreement (Firearms Training Systems Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatSelling Agent as follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter notify you promptly and, if requested by the Underwriteryou, will confirm such advice in writing writing: (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, shall have become effective or any supplement to the Prospectus shall have been filed; (ii) of any request by the Commission SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ; (iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes purposes; and (iv) within the period of time referred to in Section 6.03 5(d) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission SEC shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every use its reasonable effort best efforts to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will not file furnish you, without charge, as many copies of the Registration Statement as originally filed with the SEC and of each amendment thereto, including financial statements and all exhibits thereto as you may reasonably request.
(c) The Company will permit the Selling Agent to review any proposed amendment or supplement to the Prospectus, and if the Company files any amendment to the Registration Statement or make makes any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised, then the Selling Agent may terminate this Agreement.
6.03. (d) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter Selling Agent a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter a Selling Agent or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter Selling Agent and by Selected Dealers selected dealers through whom Units Shares may be soldsold as authorized pursuant to this Agreement, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the UnderwriterSelling Agent, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission SEC an appropriate amendment or supplement thereto, and will furnish to the Underwriter Selling Agent and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(e) The Company will register or qualify the Shares for offer and sale by you and by selected dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as the Company may designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification. The selection of the states in which to offer and sell Shares is within the Company's sole discretion.
(f) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(g) During the period of five years hereafter, the Company will furnish to you without charge: (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the SEC if such report is not immediately available on the SEC's XXXXX website and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request, subject to the requirements of Regulation FD.
(h) The Company will apply the net proceeds of the Offering in the manner set forth in the Prospectus, and any amendments or supplements thereto.
Appears in 1 contract
Sources: Selling Agency Agreement (Independence Bancshares, Inc.)
Covenants of the Company. The Company covenants and agrees with the Underwriter Underwriters that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by upon notification from the Underwriter, will confirm such advice in writing (i) when Commission that the Registration Statement has become effective effective, will so advise you and when will not at any time, whether before or after the Effective Date, file any amendment thereto thereafter becomes effectiveto the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by you of the distribution of the Shares contemplated hereby (but in no event more than nine months after the Effective Date) and (B) 25 days after the Effective Date, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in your reasonable opinion, may be necessary or advisable in connection with the distribution of the Shares. Promptly after either you or the Company is advised thereof, you will advise the Company or the Company will advise you, as the case may be, and confirm the advice in writing, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop orders or other order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation institution of any proceeding proceedings for any of such purposes, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain as soon as possible the lifting thereof. The Company has caused to be delivered to you copies of each Preliminary Prospectus, and the Company has consented and hereby consents to the use of such copies for the purposes permitted by the Act. The Company authorizes the Underwriters and selected dealers to use the Prospectus in connection with the sale of the Shares for such purposes and (iv) within period not to exceed nine months from the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made Effective Date as in the Registration Statement or reasonable opinion of counsel for you the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact use thereof is required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities applicable provisions of the Act or any other lawand the Rules and Regulations. If In case of the happening, at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for within such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law under the Act to be delivered in connection with sales by an Underwriter underwriter or a Selected Dealerdealer, of any event of which the Company will deliver to has knowledge and which materially affects the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of Company or the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the CompanySecurities, or which in the opinion of counsel for the Underwriter, requires that Company or counsel for the Underwriters should be set forth in an amendment to the Registration Statement or a material fact be stated in supplement to the Prospectus (as then amended or supplemented) in order to make the statements thereintherein not then misleading, in light of the circumstances under which they were made, not misleadingexisting at the time the Prospectus is required to be delivered to a purchaser of the Shares, or if in case it is shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or any other lawwith the Rules and Regulations, the Company, at its own expense, Company will notify you promptly and forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereof.you
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter that:
6.01. (a) After the date hereof, the Company will not at any time, whether before or after the Effective Date, file any amendment to the Registration Statement or the Prospectus, or any supplement to the Prospectus, of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative or the Underwriters' counsel shall have reasonably objected in writing on the ground that it is not in compliance with the Act or the Rules and Regulations.
(b) The Company will endeavor use its best efforts to cause the Registration Statement to become effective (provided, however, the Company shall not cause the Registration Statement to become effective without the written consent of IAR) and will advise the Underwriter promptly andRepresentative, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has shall have become effective and when any amendment thereto thereafter becomes shall have become effective, and when any amendment of or supplement to the Prospectus shall be filed with the Commission, (ii) of any request by when the Commission shall make request or suggestion for amendments or supplements any amendment to the Registration Statement or the Prospectus or for additional informationinformation and the nature and substance thereof, and (iii) of the issuance by the Commission of any stop an order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for that purpose, and will use its best efforts to prevent the issuance of such purposes and (iv) within the period of time referred to in Section 6.03 belowan order, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to if such an order shall be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementissued, the Company will make every reasonable effort to obtain the withdrawal of such order thereof at the earliest possible timemoment.
6.02. (c) The Company will not prepare and file any amendment with the Commission, promptly upon the request of the Representative, such amendments, or supplements to the Registration Statement or make any amendment or supplement Prospectus, in form and substance satisfactory to counsel to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to timeCompany, for such period as in the written reasonable opinion of Xxxxxx Xxxxx P.C., as counsel for to the Underwriter a Prospectus is required by law to Underwriters, may be delivered necessary or advisable in connection with sales the offering or distribution of the Units, and will diligently use its best efforts to cause the same to become effective.
(d) The Company will, at its expense, when and as requested by an Underwriter the Representative, supply all necessary documents, exhibits and information, and execute all such applications, instruments and papers as may be required, in the opinion of the Underwriters' counsel, to qualify the Units or such part thereof as the Representative may determine, for sale under the so-called "Blue Sky" Laws of such states as the Representative shall designate, and to continue such qualification in effect so long as required for the purposes of the distribution of the Units, provided, however, that the Company shall not be required to qualify as a Selected Dealerforeign corporation or dealer in securities or to file a consent to service of process in any state in any action other than one arising out of the offering or sale of the Units.
(e) The Company will, at its own expense, file and provide, and continue to file and provide, such reports, financial statements and other information as may be required by the Commission, or the proper public bodies of the States in which the Units may be qualified for sale, for so long as required by applicable law, rule or regulation and will provide the Representative with copies of all such registrations, filings and reports on a timely basis.
(f) During the period of five years from the Effective Date, the Company will deliver to the Underwriter a copy of each annual report of the Company, and will deliver to the Underwriter (i) within 50 days after the end of each Selected Dealer through whom Units of the Company's first three quarter-yearly fiscal periods, a balance sheet of the Company as at the end of such quarter-yearly period, together with a statement of its income and a statement of changes in its cash flow for such period (Form 10-Q or 10-QSB), all in reasonable detail, signed by its principal financial or accounting officer, (ii) within 105 days after the end of each fiscal year, a balance sheet of the Company as at the end of such fiscal year, together with a statement of its income and statement of cash flow for such fiscal year (Form 10-K or 10- KSB), such balance sheet and statement of cash flow for such fiscal year to be in reasonable detail and to be accompanied by a certificate or report of independent public accountants, (who may be soldthe regular accountants for the Company), without charge(iii) as soon as available a copy of every other report (financial or other) mailed to the stockholders, and (iv) as soon as available a copy of every non-confidential report and financial statement furnished to or filed with the Commission or with any securities exchange pursuant to requirements by or agreement with such exchange or the Commission pursuant to the Securities Exchange Act of 1934, as many amended (the "1934 Act"), or any regulations of the Commission thereunder. If and for so long as the Company has one or more active subsidiaries, the financial statements required by (i) and (ii) above shall be furnished on a consolidated basis in respect of the Company and all of the Company's subsidiaries. The financial statements referred to in (ii) shall also be furnished to all of the stockholders of the Company as soon as practicable after the 105 days referred to therein.
(g) The Company shall comply with all periodic reporting and proxy solicitation requirements imposed by the Commission pursuant to the 1934 Act, and shall promptly furnish you with copies of all material filed with the Prospectus Commission pursuant to the 1934 Act or otherwise furnished to shareholders of the Company.
(h) The Company will make generally available to its security holders, as soon as practicable, but in no event later than 15 months after the Effective Date, an earnings statement of the Company (which need not be audited) in reasonable detail, covering a period of at least twelve months beginning after the Effective Date, which earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) The Company will, on or about the Effective Date, apply for (or maintain) listing in Standard and Poor's Corporation Records and Standard & Poor's Monthly Stock Guide and shall use its best efforts to have the Company listed in such reports for a period of any amendment or supplement theretonot less than five (5) as they may reasonably requestyears from the Closing Date. The Company consents will request accelerated treatment in the Daily News Supplement of Standard and Poor's Corporation Records.
(j) The Company shall employ the services of an auditing firm acceptable to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both Representative in connection with the offering or sale preparation of the Units financial statements required to be included in the Registration Statement and shall continue to appoint such auditors or such other auditors as are reasonably acceptable to the Representative for a period of five (5) years following the Effective Date of the Registration Statement. Said financial statements shall be prepared in accordance with Regulation S-X under the General Rules and Regulations of the 1933 Act. The firm of Xxxxxxxxx, Rich, Baker, Xxxxxx & Company are deemed acceptable to the Underwriter. The Company shall appoint Continental Stock Transfer & Trust Company transfer agent (the "Transfer Agent") for the Common Stock and as Warrant Agent for the Warrants.
(k) Until such time as the Company's Common Stock is listed on the New York Stock Exchange, the American Stock Exchange, or the NASDAQ/NMS; the Company shall cause its legal counsel or an independent firm acceptable to the Representative to provide the Representative with a survey, to be updated upon request of the Underwriter, of those states in which the securities of the Company may be traded in non-issuer transactions under the Blue Sky laws of the states and the basis for such period of time thereafter as the Prospectus is required by law to authority. The first such survey shall be delivered by such counsel at closing; the second such survey shall be delivered by such counsel within five business days of publication of the Company in connection therewith. If during such period Standard & Poor's Corporation Records and, thereafter upon request of time the Underwriter.
(l) As soon as practicable after the Closing Date, the Company will deliver to the Representative and its counsel a total of two bound volumes of copies of all documents relating to the public offering which is the subject of this Agreement.
(m) The Company and its officers, directors and principal stockholders have agreed not to issue, sell, offer to sell or otherwise dispose of any event shall occur that in the judgment shares of the Company's Common Stock, or in securities convertible into Common Stock, owned by them, for a period of two (2) months from the opinion of counsel for Effective Date without the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light prior written consent of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereofRepresentative.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter thatseveral Underwriters as follows:
6.01. The (a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) writing, when the Registration Statement or such post-effective amendment has become effective and when any amendment thereto thereafter becomes effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (iii) of any request by the Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus or for additional information, ; (ii) of receipt of any comments or other communications from the Commission; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation of any proceeding for such purposes purpose; and (iv) within the period of time referred to in Section 6.03 paragraph (f) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that which requires the making of any addition additions to or change changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (c) The Company will furnish to you, without charge, three (3) signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not previously have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to timeadvised or (ii) so long as, for such period as in the written opinion of counsel for the Underwriter Underwriters, a Prospectus is required by law to be delivered in connection with sales by an any Underwriter or dealer, file any information, documents or reports pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a Selected Dealercopy of such information, documents or reports to you, as Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to the each Underwriter and each Selected Dealer through whom Units may be solddealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they you may reasonably request. The Company consents to the use of such the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter several Underwriters and by Selected Dealers through all dealers to whom Units Shares may be sold, both in connection with the offering or and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law the Act to be delivered in connection therewithwith sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company, Company or in the opinion of counsel for the Underwriter, requires that a material fact Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, Company will forthwith prepare and and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Underwriter Underwriters and each Selected Dealer through whom Units may be sold, without charge, dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. 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 you may reasonably request for distribution of the Shares.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission or the Nasdaq National Market, and (ii) from time to time such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Shareholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company shall apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectus 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.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not (i) sell, pledge, offer to sell, solicit an offer to buy, contract to sell, grant any option, right or warrant to purchase, sell any option or contract to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock (other than the Shares to be sold by it), or any securities convertible into or exercisable or exchangeable for Class A Common Stock, (ii) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, or (iii) make any demand for or exercise any right with respect to the registration of any shares of Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, for a period of 180 days after the date of the Prospectus, without the prior written consent of Smitx Xxxxxx Xxx., except that the Company may grant options and other awards to its employees pursuant to the Company's 1997 Incentive Plan, as such plan exists on the date of the Prospectus, and may issue shares of Common Stock issuable upon the exercise of options and other awards granted under such plan which are outstanding on the date of the Prospectus.
(n) The Company has furnished to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its shareholders designated by you.
(o) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the Class A Common Stock listed, subject to notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the registration statement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Securities contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Securities. As soon as the Company is advised thereof, the Company will advise you, and provide you copies of any written advice, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for an amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units Securities for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for any of such purposes purposes, and (iv) within will use its best efforts to prevent the period of time referred to in Section 6.03 below, of the happening issuance of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementsuch order, the Company will make every reasonable effort and, if issued, to obtain as soon as possible the withdrawal of such order at the earliest possible time.
6.02lifting thereof. The Company will not file any amendment has caused to be delivered to you copies of each Preliminary Prospectus, and the Company has consented and hereby consents to the Registration Statement or make any amendment or supplement use of such copies for the purposes permitted by the Act. The Company authorizes the Underwriter and dealers to use the Prospectus of which in connection with the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date sale of the Registration Statement and thereafter from time to time, Securities for such period as in the written opinion of counsel for to the Underwriter and the Company the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. In case of the happening, at any time within such period as a Prospectus is required by law under the Act to be delivered in connection with sales by an the Underwriter or a Selected Dealer, dealer of any event of which the Company will deliver to has knowledge and which materially affects the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment Company or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or which in the opinion of counsel for the Underwriter, requires that Company and counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a material fact be stated in supplement to the Prospectus (as then amended or supplemented) in order to make the statements thereintherein not then misleading, in light of the circumstances under which they were made, not misleading, existing at the time the Prospectus is required to be delivered to a purchaser of the Securities or if in case it is shall be necessary to amend or supplement the Prospectus to comply with law or with the Securities Act or any other lawRules and Regulations, the Company, at its own expense, Company will notify you promptly and forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to you copies of such amended Prospectus or of such supplement to be attached to the Underwriter and each Selected Dealer through whom Units Prospectus, in such quantities as you may be soldreasonably request, without chargein order that the Prospectus, a reasonable number of copies thereof.as so amended or supplemented, will not contain
Appears in 1 contract
Sources: Underwriting Agreement (Hertz Technology Group Inc)
Covenants of the Company. The Company covenants and agrees with the Underwriter Underwriters that:
6.01. The (a) If the Registration Statement has not yet been declared effective the Company will endeavor use its best efforts to cause the Registration Statement and any amend ments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will advise provide evidence satisfactory to you of such timely filing. If the Underwriter promptly andCompany elects to rely on Rule 434, if requested by the Underwriter, Company will confirm such advice in writing prepare and file a term sheet that complies with the requirements of Rule 434.
(i) when the Registration Statement has and any amend ments thereto become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments any amend ment of or supplements supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purposes and (iv) within that purpose. If the period of time referred Commission shall propose or enter a stop order at any time, the Company will make every reasonable effort to in Section 6.03 below, of prevent the happening issuance of any event that makes such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will not file any statement made in amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the Act any event shall have occurred as a result of which the Pro spectus as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change supplemented would, in the Registration Statement judgment of the Underwriters or the Prospectus (as then amended Company include an untrue statement of a material fact or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or any other lawthe Regulations, the Company, at its own expense, Company will forthwith notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Com pany will promptly deliver to each of the Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earning statement (in form complying with the provisions of Rule 158 of the Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the Prospectus, the Company will not, directly or indirectly, without the prior written consent of Bear, Xxxxxxx & Co. Inc., issue, sell, offer or agree to sell, grant any option to purchase or otherwise transfer or dispose (or announce any offer, sale, grant of an option to purchase or other transfer or disposition) of any shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for shares of Common Stock), and the Company will obtain the undertaking of each of its officers and directors and such of its stockholders as have been heretofore designated by you and listed on Schedule III attached hereto not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of presently out standing stock options.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to you copies of (i) all reports to its shareholders; and (ii) all reports, financial statements and proxy or information statements filed by the Underwriter and each Selected Dealer through whom Units may Company with the Commission or the Nasdaq National Market.
(h) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be sold, without charge, a reasonable number of copies thereofapproved for quotation on the Nasdaq National Market.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective and effective. The Company will advise the Underwriter you promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement (and make every reasonable effort to obtain the withdrawal of such order as early as possible) or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes that purpose, and (iv) within will also advise you promptly of any request of the period Commission for amendment or supplement of time referred to in Section 6.03 belowthe Registration Statement, of any preliminary prospectus or of the happening Prospectus, or for additional information, and will not file any amendment or supplement to the Registration Statement, to any preliminary prospectus or to the Prospectus of which you have not been furnished with a copy prior to such filing or to which you reasonably object.
(b) If at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act, any event that makes occurs as a result of which the Prospectus, including any amendments or supplements, would include an untrue statement made in the Registration Statement of a material fact, or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Company proposes for use by the Underwriter in connection with the offering of the Shares which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Securities Act or any other law1933 Act, the CompanyCompany promptly will advise you thereof and will promptly prepare and, at its own expenseif required pursuant to Rule 424(b), will forthwith prepare and file with the Commission an appropriate amendment or supplement theretowhich will correct such statement or omission or an amendment which will effect such compliance.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Second Closing Date or termination or expiration of the related option, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(d) The Company will not declare or pay any dividend or make any other distribution upon the Common Stock payable to shareholders of record on a date prior to the earlier of the Second Closing Date or termination or expiration of the related option, except as contemplated by the Prospectus.
(e) Not later than 90 days after the close of the period covered thereby, the Company will make generally available to its security holders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement, which will satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act and Rule 158 thereunder.
(f) During such period as a prospectus is required by law to be delivered in connection with offers and sales of the Shares by an Underwriter or dealer, the Company will furnish to you at its expense (and consents to the use thereof), subject to the provisions of subsection (b) hereof, copies of the Registration Statement, the Prospectus, each preliminary prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as you may reasonably request, for the purposes contemplated by the 1933 Act.
(g) The Company will cooperate with the Underwriters in qualifying or registering the Shares for sale under the blue sky laws of such jurisdictions as you designate, and will continue such qualifications in effect so long as reasonably required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not currently qualified or where it would be subject to taxation as a foreign corporation.
(h) During the period of three years after the date of the Pricing Agreement, the Company will furnish to the Representative a copy (i) as soon as practicable after the filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD and (ii) as soon as available, of each report of the Company mailed to any class of its securityholders.
(i) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A, then immediately following the execution and delivery of the Pricing Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended prospectus), containing all information so omitted.
(k) The Company will file with the Commission in a timely manner all reports on Form SR required by Rule 463 and will furnish you copies of any such reports as soon as practicable after the filing thereof.
(l) The Company will comply with all of the provisions of each undertaking contained in the Registration Statement.
(m) The Company will not, without the prior written consent of the Underwriter, sell, contract to sell or otherwise dispose of any equity security of the Company (including shares of Common Stock) for a period of 180 days after the effective date of the Registration Statement, other than (i) Common Stock issued and sold to the Underwriter pursuant to this Agreement, and (ii) Common Stock issued upon exercises of outstanding stock options granted under the Company's 1988 Stock Option Plan or 1995 Stock Option Plan (as such terms are defined in the Prospectus) in the aggregate not to exceed ____ shares of Common Stock. The Company will cause each of its executive officers and directors to deliver to the Underwriter on or before the date of this Agreement an agreement satisfactory in form and substance to the Underwriter and its counsel, whereby each Selected Dealer through whom Units may be soldagrees, for a period of 180 days after the effective date of the Registration Statement, not to offer, sell or otherwise dispose of any shares of Common Stock without charge, a reasonable number the prior written consent of copies thereofthe Underwriter ("Lock-Up Letter").
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the Underwriter Underwriters that:
6.01(a) The Company will prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement. The Company will endeavor not amend or supplement the Final Prospectus or any amendment or supplement thereto unless the Representatives and counsel to cause the Registration Statement Underwriters shall previously have been advised of such proposed amendment or supplement and furnished a copy for a reasonable period of time prior to become effective the proposed amendment or supplement and the Representatives shall have given their consent thereto, which consent shall not be unreasonably withheld. The Company will advise the Underwriter Representatives, promptly andafter it receives notice thereof, if requested by of the Underwriter, will confirm such advice in writing (i) time when any amendment to the Registration Statement has become been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and when will furnish the Representatives with copies thereof. The Company will advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any amendment thereto thereafter becomes effectivestop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, (ii) of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for amendments the amending or supplements to supplementing of the Registration Statement or the Prospectus or for additional information; and, (iii) in the event of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will promptly, upon the reasonable request of the Representatives or counsel for the Underwriters, make any amendments or supplements to the Preliminary Prospectus or the Final Prospectus that may be necessary or advisable in connection with the resale of the Securities by the Underwriters.
(b) The Company will deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the suspension Securities and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(c) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, the Company will furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing.
(d) The Company will cooperate with the Underwriters in arranging for the qualification of the Units Securities for offering and sale under the securities or sale "Blue Sky" laws of such jurisdictions as the Representatives may designate and will continue such qualification in effect for as long as may be necessary to complete the resale of the Securities by the Underwriters; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or partnership or to execute a general consent to service of process in any state jurisdiction or jurisdictionsubject itself to any tax in any such jurisdiction where it is not then so subject.
(e) If, or at any time prior to the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, completion of the happening distribution by the Underwriters of the Securities, any event that makes any statement made in occurs or information becomes known as a result of which the Registration Statement or the Final Prospectus (as then amended or supplemented) supplemented would include an untrue in any statement of a material respect fact, or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Prospectus in order to comply with the Securities Act or any other applicable law, the Company, at its own expense, Company will forthwith promptly notify the Representatives thereof and will prepare and file with the Commission Commission, at the Company's expense, an appropriate amendment or supplement theretoto the Final Prospectus that corrects such statement or omission or effects such compliance.
(f) The Company will, without charge, provide to the Representatives and to counsel for the Underwriters as many copies of the Preliminary Prospectus and the Final Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request.
(g) The Company will apply the net proceeds from the sale of the Securities substantially as set forth under "Use of Proceeds" in the Final Prospectus.
(h) Prior to the Closing Date, the Company will furnish to the Underwriter and each Selected Dealer through whom Units may be soldRepresentatives, without chargeas soon as they have been prepared by or are available to the Company, a reasonable number copy of copies thereofany unaudited interim consolidated financial statements of the Company for any period subsequent to the period covered by its most recent financial statements appearing in the Final Prospectus.
(i) No offering, sale, short sale or other disposition of any shares of Common Stock 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 (i) hereunder, (ii) with the prior written consent of the Representatives on behalf of the Underwriters, (iii) grants of employee, officer or director stock options and issuance of shares of Common Stock upon the exercise of any option granted under any employee, officer or director stock option or similar benefit plan in existence on the date hereof or (iv) issuance of shares of Common Stock, stock appreciation rights or common stock equivalents or warrants, rights or options to purchase any of the foregoing pursuant to any employee, officer or director stock option, stock purchase or similar benefit plans in existence on the date hereof.
(j) The Company will cause the Securities to be duly authorized for listing by the New York Stock Exchange on or prior to the Closing Date and ensure that the Securities remain authorized for listing following the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Magnum Hunter Resources Inc)
Covenants of the Company. The Company covenants and agrees with that: ------------------------
(a) It will promptly deliver to the Underwriter that:
6.01. The Company will endeavor to cause Underwriters a signed copy of the Registration Statement as originally filed or, to become effective the extent a signed copy is not available, a conformed copy, certified by an officer of the Company to be in the form as originally filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(b) It will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Prospectus as of such date as the Underwriters may reasonably request.
(c) It will cause the Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriter promptly and, if requested by Underwriters of the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) issuance of any request by stop order under the Commission for amendments or supplements Securities Act with respect to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission institution of any stop order suspending the effectiveness proceedings therefor of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, which the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not file any amendment to the Registration Statement or make any amendment or supplement to exceeding nine months) after the Prospectus of which has been filed with the Underwriter shall not have been advised previously or Commission pursuant to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period Rule 424 as in the written opinion of counsel Counsel for the Underwriter Underwriters a Prospectus prospectus covering the Securities is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, any event relating to or affecting the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies or of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered Company shall be advised in writing by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event Underwriters shall occur that in the judgment Company's reasonable opinion after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser, the Company will, at its expense, amend or supplement the Prospectus by either (i) preparing and furnishing to the Underwriters at the Company's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus or (ii) making an appropriate filing pursuant to Section 13 of the Exchange Act, which will supplement or in amend the opinion Prospectus so that, as supplemented or amended, it will not contain any untrue statement of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or if it supplement. In case any Underwriter is necessary required to amend or supplement deliver a prospectus after the expiration of nine months from the date the Prospectus to comply is filed with the Securities Act or any other lawCommission pursuant to Rule 424, the Company, at its own expenseupon the Underwriter's request, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be soldUnderwriter, without chargeat the expense of the Underwriters, a reasonable number quantity of copies thereofa supplemental prospectus or supplements to the Prospectus complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security holders, as soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months beginning not earlier than the first day of the month next succeeding the month in which occurred the effective date of the Registration Statement as defined in Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the blue-sky laws of such jurisdictions as the Underwriters may designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, (ii) the issuance and delivery of the Securities as provided in Section 5 hereof (including, without limitation, all trustee and rating agency fees), (iii) the qualification of the Securities under blue-sky laws (including counsel fees not to exceed $7,500 and reasonable disbursements of counsel), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 6(d) hereof, of the Prospectus. The Company shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if this Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 10 hereof, the Company will reimburse the Underwriters for the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $5,000, incurred in contemplation of the performance of this Agreement. The Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(h) [2,3,4 During the period from the date of this Agreement to the Closing Date, the Company will not, without the prior written consent of the Representatives, directly or indirectly, publicly issue, sell, offer or contract to sell, in the market in which the Securities are being offered and sold, any securities of the Company or any of its subsidiaries which are of the same class as the Securities.]
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have reasonably objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by the Underwriter of the distribution of the Units contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective, (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel to the Company and the Underwriter, may be reasonably necessary or advisable in connection with the distribution of the Units. As soon as the Company is advised thereof, the Company will advise you, and provide you copies of any written advice, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for an amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for any of such purposes purposes, and (iv) within will use its best efforts to prevent the period of time referred to in Section 6.03 below, of the happening issuance of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statementsuch order, the Company will make every reasonable effort and, if issued, to obtain as soon as possible the withdrawal of such order at the earliest possible time.
6.02lifting thereof. The Company will not file any amendment has caused to be delivered to you copies of each Preliminary Prospectus, and the Company has consented and hereby consents to the Registration Statement or make any amendment or supplement use of such copies for the purposes permitted by the Act. The Company authorizes the Underwriter and dealers to use the Prospectus of which in connection with the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date sale of the Registration Statement and thereafter from time to time, Units for such period as in the written opinion of counsel for to the Underwriter and the Company the use thereof is required to comply with the applicable provisions of the Act and the Rules and Regulations. In case of the happening, at any time within such period as a Prospectus is required by law under the Act to be delivered in connection with sales by an the Underwriter or a Selected Dealer, dealer of any event of which the Company will deliver to has knowledge and which materially affects the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment Company or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or which in the opinion of counsel for the Underwriter, requires that Company and counsel for the Underwriter should be set forth in an amendment of the Registration Statement or a material fact be stated in supplement to the Prospectus (as then amended or supplemented) in order to make the statements thereintherein not then misleading, in light of the circumstances under which they were made, not misleading, existing at the time the Prospectus is required to be delivered to a purchaser of the Units or if in case it is shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, a reasonable number of copies thereof.or
Appears in 1 contract
Sources: Underwriting Agreement (Thermacell Technologies Inc)
Covenants of the Company. The Company covenants and agrees with each of the Underwriter thatUnderwriters as follows:
6.01. (a) The Company will endeavor 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 as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b). During any time when a prospectus relating to the shares is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Shares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented. With respect to any registration statement, prospectus, amendment, or supplement to be filed with the Commission in connection with the Shares, the Company will provide a copy of each such document to the Representative a reasonable time prior to the date such document is proposed to be filed with the Commission and will not file any such document without the consent of the Representative. In the event that the Registration Statement is effective at the time of execution of this Agreement but the total number of Shares subject to this Agreement exceeds the number of Shares covered by the Registration Statement, the Company will promptly file with the Commission on the date hereof a registration statement pursuant to Rule 462(b) in accordance with the requirements of such Rule and will make payment of the filing fee therefor in accordance with the requirements of Rule 111(b) under the Act.
(b) The Company will advise the Underwriter Representative promptly and, if requested by the Underwriter, will confirm such advice in writing (iA) when the Registration Statement Statement, as amended, has become effective and effective; (B) if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A; (C) when any post-effective amendment thereto thereafter to the Registration Statement becomes effective, ; (iiD) of any request made by the Commission for amendments or supplements to amending the Registration Statement Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information, ; and (iiiE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto or any order preventing or suspending the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation use of any proceeding for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement Preliminary Prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the Prospectus issuance of which any such order and, if issued, to obtain the Underwriter lifting thereof as soon as possible.
(c) The Company will cooperate with the Representative, its counsel and the Underwriters in qualifying or registering the Shares for sale, or obtaining an exemption therefrom, under the Blue Sky laws of such jurisdictions as the Representative shall designate, and will continue such qualifications or registrations or exemptions in effect so long as reasonably requested by the Representative to effect the distribution of the Shares. The Company shall not have been advised previously be required to qualify as a foreign corporation or to which the Underwriter shall reasonably object file a general consent to service of process in writing promptly after being so advisedany such jurisdiction where it is not presently qualified.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement theretod) as they may reasonably request. The Company consents to the use of such the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter Underwriters and by Selected Dealers through all dealers to whom Units the Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of If, at any time when a prospectus relating to the Shares is required to be delivered under the Act, any event shall occur that in occurs as a result of which the judgment of the CompanyProspectus, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order , would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, or if it is becomes necessary at any time to amend or supplement the Prospectus to comply with the Securities Act or any other lawthe Rules and Regulations, the CompanyCompany promptly will so notify the Representative and, at its own expensesubject to Section 7(a) hereof, will forthwith prepare and file with the Commission an appropriate amendment to the Registration Statement or an amendment or supplement theretoto the Prospectus which will correct such statement or omission or effect such compliance, each such amendment or supplement to be reasonably satisfactory to counsel to the Underwriters.
(e) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that such quarter is the Company's last fiscal quarter), the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will furnish otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act or the Rules and Regulations, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(f) During a period of five years after the date hereof, the Company will deliver to the Underwriter and each Selected Dealer through whom Units Representative:
(i) as soon as practicable after filing with the Commission, all such reports, forms or other documents as may be soldrequired from time to time, under the Act, the Rules and Regulations, the Exchange Act and the rules and regulations thereunder;
(ii) as soon as they are available, copies of all information (financial or other) mailed to stockholders;
(iii) as soon as they are available, copies of all reports and financial statements furnished to or filed with the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange or market;
(iv) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by the Company; and
(v) any additional information of a public nature concerning the Company or its business which the Representative may reasonably request. During such five-year period the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary or affiliate which is not so consolidated.
(g) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Stock.
(h) The Company will furnish, without charge, to the Representative or on the Representative's order, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto, and any registration statement filed pursuant to Rule 462(b) (two of which copies will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto in each case as soon as available and in such quantities as the Representative may reasonably request. The Company will provide or cause to be provided to the Representative and upon request to each Underwriter, a reasonable number copy of copies thereofthe report on Form SR filed by the Company if required by Rule 463 under the Act.
(i) Except pursuant to this Agreement, the Company will not, directly or indirectly, without the prior written consent of the Representative issue, offer, sell, offer to sell, contract to sell, grant any option to purchase, pledge or otherwise dispose (or announce any issuance, offer, sale, offer of sale, contract of sale, grant of any option to purchase, pledge or other disposition) of any shares of Stock or any securities convertible into, or exchangeable or exercisable for, shares of Stock for a period of 180 days after the date hereof, other than issuances pursuant to the exercise of stock options or warrants outstanding on the date hereof.
(j) The Company will cause the Shares to be duly approved for listing on the NNM prior to the Closing Date. The Company shall take all necessary and appropriate action such that the Common Shares are authorized for quotation on the NNM as soon as practicable after the effectiveness of the Registration Statement and the Common Shares shall remain so authorized for at least thirty-six (36) months thereafter.
(k) Neither the Company nor any of its officers or directors, nor affiliates of any of them (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to, cause or result in, or which will constitute, stabilization or manipulation of the price of any securities of the Company.
(l) The Company will apply the net proceeds of the offering received in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(m) The Company will timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Rules and Regulations, the Exchange Act and the rules and regulations thereunder, and all such reports, forms and documents so filed will comply as to form and substance with the applicable requirements under the Act, the Rules and Regulations, the Exchange Act and the rules and regulations thereunder.
(n) Except as described in the Prospectus, the Company will not, prior to the Option Closing Date, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business or, if there is no Option Closing Date, then prior to the First Closing Date.
(o) The Company will not acquire any of the Company's capital stock prior to the Option Closing Date nor will the Company declare or pay any dividend or make any other distribution upon its capital stock payable to its holders of record on a date prior to the Option Closing Date or, if there is no Option Closing Date, then prior to the Closing Date.
(p) The Company will comply or cause to be complied with the conditions to the obligations of the Underwriters set forth in Section 8 hereof.
(q) The Company shall promptly prepare and file with the Commission, from time to time, such reports as may be required to be filed by the Rules and Regulations.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the each Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause notify you or your counsel immediately, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement to become effective and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effectivethereto, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for amendments any amendment or supplements supplement to the Registration Statement or the Prospectus or for additional information, and (iiiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other lawpurpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the withdrawal of such order lifting thereof at the earliest possible timemoment.
6.02. (b) The Company will not give you notice of its intention to file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of (including a prospectus filed pursuant to Rule 424(b) which differs from the Underwriter shall prospectus on file at the time the Registration Statement becomes effective), and will not have been advised previously file any such amendment or supplement to which the Underwriter you or your counsel shall reasonably object in writing promptly after being so advisedobject.
6.03. On the Effective Date (c) The Company will deliver to you as many signed copies of the Registration Statement as originally filed and thereafter of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as you may reasonably request.
(d) The Company will furnish to you, from time to time, for such time during the period as in when the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerunder the 1933 Act, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many such number of copies of the Prospectus (and of any amendment as amended or supplement theretosupplemented) as they each such Underwriter may reasonably request. The Company consents to request for the use of such Prospectus (purposes contemplated by the 1933 Act or the 1933 Act Regulations and of any amendment or supplement thereto) in accordance with for purposes contemplated by the provisions of the Securities 1934 Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter rules and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. regulations thereunder.
(e) If during such period of time any event shall occur that in the judgment as a result of the Companywhich it is necessary, or in the opinion of counsel for your counsel, to amend the UnderwriterRegistration Statement and the Prospectus or to supplement 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, requires that the Company will forthwith amend the Registration Statement and the Prospectus or supplement the Prospectus, as the case may be, by preparing and furnishing to you a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to the Registration Statement and the Prospectus (in form and substance satisfactory to your counsel), so that, as so amended or supplemented, the Registration Statement and the Prospectus, as the case may be, will not contain an untrue statement of a material fact be stated in the Prospectus (as then amended or supplemented) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered to a purchaser, not misleading.
(f) The Company will endeavor, in cooperation with you and your counsel, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States and foreign jurisdictions as you may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Shares. The Company shall not, however, be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified except as may be required by the laws of the State of New York. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which such securities have been qualified as above provided.
(g) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) of the 1933 Act, which need not be certified by independent public accountants unless required by the 1933 Act or the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement.
(h) The Company will for a period of five years from the effective date of the Registration Statement furnish directly to you, as soon as the same shall be sent to the Company's shareholders, copies of any annual or interim reports of the Company to its shareholders, and it will, for the same period, also furnish you with the following:
(i) Concurrently with furnishing to the Company's shareholders one copy of the annual independent accountants' report, including therein the accountants' certificate, the consolidated balance sheet of the Company and its subsidiaries, if any, and the related consolidated statements of income, operations, retained earnings, and changes in financial position;
(ii) copies of any report, application, or if document which the Company shall file with the Commission, the National Association of Securities Dealers Automated Quotation System (NASDAQ), or any securities exchange;
(iii) copies of any press releases disseminated to the public; and,
(iv) as soon as the same shall be sent to the shareholders, each communication which shall be sent to the shareholders as a class.
(i) The Company will apply the net proceeds from the sale of the Shares sold by it is necessary to amend or supplement hereunder for the purposes set forth under "Use of Proceeds" in the Prospectus to in substantially the amounts indicated thereunder.
(j) The Company will comply with the Securities safeguards proposed for transient investment companies as set forth in Rule 3a-2 of the Investment Company Act of 1940 for temporary exclusion from its requirements.
(k) For a period of twenty-four (24) months beginning on the effective date of the Registration Statement, the Company will not, and will not permit any of its subsidiaries to, issue any shares of Common Stock to any person or any warrants, option, or other lawrights to purchase or acquire any shares of Common Stock to any officer, director, or principal shareholder of the Company or any affiliate or associate thereof except with your prior written consent, such consent not to be unreasonably withheld.
(l) For a period of thirty (30) days beginning on the effective date of the Registration Statement, the Company will not hold any discussion with any member of the news media nor release any information or other publicity about itself, its properties, or its management without your prior written consent and prior notification to your counsel.
(m) The Company will not retain any NASD member within a period of twelve (12) months after the sale of Shares hereunder, to act as a finder or consultant for purposes of locating a merger/acquisition candidate.
(n) The Company undertakes not to retain any person or entity to conduct a search, or to assist in the conduct of the Company's search, at its own expensefor merger/acquisition candidates, without providing you with thirty days notification and sufficient information to permit you to respond to the NASD with respect to such retention.
(o) The Company will forthwith prepare and file with the Commission an appropriate amendment a report on Form SR in accordance with the 1933 Act regulations and will supply copies of the Form SR, and any amendments or supplement supplements thereto, to you and your counsel within five days of its filing with the Commission.
(p) If not accomplished as of the effective date, within 30 days following the Closing Time, the Company will register its equity securities under Section 12(g) of the 1934 Act, will use its best efforts to cause the Registration Statement to become effective, and will furnish supply copies of the Form 8-A, and any amendments or supplements thereto, to you and your counsel within five days of its filing with the Underwriter Commission.
(q) The Company will obtain a CUSIP number for its Common Stock by the first day for trading of the Shares. The Company will use its best efforts to have the Shares listed on NASDAQ on the first day of trading of the Shares with a NASDAQ symbol mutually agreeable to you and each Selected Dealer through whom Units may be soldthe Company. For as long as the Common Stock is registered under the 1934 Act, without chargethe Company will comply in all material respects with the 1934 Act and the rules and regulations thereunder and will hold an annual meeting of shareholders for the election of directors within 180 days following the end of the Company's fiscal year.
(r) Within 10 days following the Closing Time, the Company will apply for listing on Xxxxx'x Over-the-Counter Industrial Manual and Standard & Poor's Corporation Description Manual.
(s) The Company shall retain a reasonable number transfer agent satisfactory to you to transfer the shares of copies thereofCommon Stock.
(t) Within 90 days following the Closing Time, the Company will at its expense prepare for you and your counsel three bound volumes of the offering documents.
Appears in 1 contract
Sources: Underwriting Agreement (Easylink Information Technology Co LTD)
Covenants of the Company. The Company covenants and agrees with the Underwriter thatthat it will:
6.01. The Company will endeavor to cause the Registration Statement to become effective (a) Notify First Montauk immediately, and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice notice in writing writing, (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any state or jurisdiction, or the initiation of any proceeding for such purposes and (iv) within event shall have occurred during the period commencing on the date hereof and ending on the Final Closing Date, as a result of time referred to in Section 6.03 below, which the Offering Documents would include any untrue statement of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required or omit to be stated therein or state any material fact necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and (ii) of the receipt of any notification with respect to the modification, rescission, withdrawal, or if suspension of the qualification or registration of the Securities, or of an exemption from such registration or qualification, in any jurisdiction. The Company will use its reasonable best efforts to prevent the issuance of any such modification, rescission, withdrawal, or suspension, and at Placement Agent's request, to use reasonable best efforts to obtain the lifting thereof as promptly as possible.
(b) Not make any supplement or amendment to the Offering Documents unless such supplement or amendment complies with the requirements of the Act and Regulation D and the applicable federal and/or state securities and blue sky laws and unless the Placement Agent shall have approved of such supplement or amendment. If, at any time during the period commencing on the date hereof and ending on the Final Closing Date, any event shall have occurred as a result of which the Offering Documents contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading, or if, in the reasonable opinion of counsel to the Company or counsel to the Placement Agent, it is necessary at any time to supplement or amend or supplement the Prospectus Offering Documents to comply with the Securities Act Act, Regulation D, or any applicable securities or blue sky laws, the Company will promptly prepare an appropriate supplement or amendment (in form and substance satisfactory to the Placement Agent) which will correct such statement or omission or which will effect such compliance.
(c) Deliver without charge to the Placement Agent such number of copies of the Offering Documents and any supplement or amendment thereto as may reasonably be requested by the Placement Agent.
(d) Not, directly or indirectly, solicit any offer to buy from, or offer to sell to any person any Securities, or any other lawsecurities (whether debt or equity) of the Company except through the Placement Agent.
(e) Use its best efforts to establish an exemption from qualification and registration under the securities or blue sky laws of the jurisdictions as may be required by the Placement Agent in connection with the offer and sale of the Securities and retain counsel in making any required filings; provided, however, that the Company will not be obligated to qualify to do business or register as a dealer in securities, or otherwise subject itself to general service of process, in any jurisdiction in which it is not so qualified. The Company shall cooperate with its counsel to make a Form 99 (if necessary) and State Notice filing with the State of New York prior to the commencement of the Offering and timely file a Form D and such other required notice with all state blue sky authorities and the SEC related to the Offering.
(f) At all times during the period commencing on the date hereof and ending on the Final Closing Date, provide to each Prospective Investor or his Purchaser Representative (as defined in Regulation D), if any, on request, such information (in addition to that contained in the Offering Documents) concerning the Offering, the Company and any other relevant matters, as it possesses or can acquire without unreasonable effort or expense, and to extend to each Prospective Investor or his Purchaser Representative, if any, the opportunity to ask questions of, and receive answers from, the President or other executive officers of the Company concerning the terms and conditions of the Offering and the business of the Company and to obtain any other additional information, to the extent it possesses the same or can acquire it with reasonable effort or expense, and in conformity with existing laws and regulations of federal and state and other regulatory bodies and agencies as such Prospective Investor or Purchaser Representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such Prospective Investor or Purchaser Representative, as the case may be. Notwithstanding, anything in this Section 7(f) to the contrary, the Prospective Investor and/or his Purchaser Representative, as the case may be, shall only rely on such information in making an investment decision, to the extent it has been provided to them in the Offering Documents or otherwise provided by the Company in writing.
(g) So long as the Debentures and the Warrants (including the Shares receivable upon the respective conversion or exercise thereof) are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, or is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2b under the Exchange Act, provide to each holder of Debentures and to each prospective purchaser (as designated by such holder) of Debentures upon the request of such holder or prospective holder, any information required to be provided by Rule 144A(d)(4) under the Securities Act. In addition, the Company shall cause to be provided, at its own cost and expense, will forthwith prepare opinions of counsel necessary to allow for any transfers or sales of the Securities (including the Shares receivable upon the respective conversion or exercise thereof) pursuant to Rule 144 and file the Company shall pay any and all transfer agent fees.
(h) Not, directly or indirectly, engage in any act or activity which may jeopardize the status of the offering and sale of the Securities as exempt transactions under the Act or under the securities or blue sky laws of any jurisdiction in which the Offering maybe made. Without limiting the generality of the foregoing, and notwithstanding anything contained herein to the contrary, the Company shall not, directly or indirectly, engage in any offering of securities which, if integrated with the Commission an appropriate amendment Offering in the manner prescribed by Rule 502(a) of Regulation D and applicable releases of the Commission, may jeopardize the status of the offering and sale of the Securities as exempt transactions under Regulation D.
(i) Apply the net proceeds from the sale of the Securities in a manner consistent with, in all material respects, the description as set forth in the Offering Documents.
(j) Not, during the period commencing on the date hereof and ending on the Final Closing Date, issue any press release or supplement theretoother communication, and will furnish or hold any press conference with respect to the Underwriter Company, its financial condition, results of operations, business, properties, assets, or liabilities, or the Offering, without First Montauk prior written consent, not to be unreasonably withheld, except as required by applicable securities laws and each Selected Dealer through whom Units except as may be soldrelated to the marketing and sale of its products in the normal course of business. The foregoing shall not prohibit the Company from holding informational meetings with accredited investors who have a pre-existing relationship with the Company during which the materials and information disseminated will be limited to the information contained in the Offering Documents or from making disclosures required by law.
(k) Within 60 days of the date hereof, without chargethe Company shall obtain a “key man” life insurance policy upon the life of Xxxx Xxxxx, with an insurance company rated at least B plus, in an amount equal to at least $3,000,000. The Company shall be the sole beneficiary of such policy and shall retain such policy for not less than two (2) years.
(l) Within 30 days from the Initial Closing, the Company and Xxxx X. Xxxxx shall execute an employment agreement regarding Xxxx X. Xxxxx’x employment as Chief Executive Officer, on terms agreeable to both parties; provided, however, that such employment agreement shall be for a reasonable number period of copies thereofnot less than three (3) years.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the Underwriter several Underwriters that:
6.01. (a) The Company will endeavor use its best efforts to cause the Registration Statement to become effective effective. If required, the Company will file the Prospectus and will advise any amendment or supplement thereto with the Underwriter promptly and, if requested Commission in the manner and within the time period required by Rule 424(b) under the Underwriter, will confirm such advice in writing (i) when Act. Upon notification from the Commission that the Registration Statement has become effective, the Company will so advise you and will not at any time, whether before or after the effective and when date, file any amendment thereto thereafter becomes to the Registration Statement or supplement to the Prospectus of which you shall not previously have been advised and furnished with a copy or to which you or your counsel shall have objected in writing or which is not in compliance with the Act and the Rules and Regulations. At any time prior to the later of (A) the completion by all of the Underwriters of the distribution of the Stock contemplated hereby (but in no event more than nine months after the date on which the Registration Statement shall have become or been declared effective) and (B) 25 days after the date on which the Registration Statement shall have become or been declared effective (the "Minimum Period"), (ii) of the Company will prepare and file with the Commission, promptly upon your request, any request by the Commission for amendments or supplements to the Registration Statement or Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Stock. As soon as the Company is advised thereof, the Company will advise you, and confirm the advice in writing, of the receipt of any comments of the Commission, of the effectiveness of any post-effective amendment to the Registration Statement, of the filing of any supplement to the Prospectus or any amended Prospectus, of any request made by the Commission for amendment of the Registration Statement or for supplementing of the Prospectus or for additional informationinformation with respect thereto, (iii) of the issuance by the Commission or any state or regulatory body of any stop order or other order or threat thereof suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Units Stock for offering or sale in any state or jurisdiction, or of the initiation institution of any proceeding proceedings for such purposes and (iv) within the period of time referred to in Section 6.03 below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter shall not have been advised previously or to which the Underwriter shall reasonably object in writing promptly after being so advised.
6.03. On the Effective Date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealer, the Company will deliver to the Underwriter and each Selected Dealer through whom Units may be sold, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriter and by Selected Dealers through whom Units may be sold, both in connection with the offering or sale of the Units and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, at its own expense, will forthwith prepare and file with the Commission an appropriate amendment or supplement theretopurposes, and will furnish use its best efforts to prevent the Underwriter and each Selected Dealer through whom Units may be soldissuance of any such order, without chargeand, a reasonable number of copies if issued, to obtain as soon as possible the lifting thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Syscomm International Corp)
Covenants of the Company. The Company covenants and agrees with the ------------------------ Underwriter thatas follows:
6.01. (a) The Company will endeavor to cause the Registration Statement to become effective and will advise the Underwriter you promptly and, if requested by the Underwriteryou, will confirm such advice in writing (i) when the Registration Statement has become effective and when any amendment thereto thereafter becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any state or jurisdiction, or the initiation or contemplation of any proceeding for such purposes purposes, and (iv) within the period of time referred to in Section 6.03 5(e) below, of the happening of any event that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any addition to or change in the Registration Statement or the Prospectus (as then amended or supplemented) to state a material fact required to be stated therein or necessary to make the statements therein not misleading or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
6.02. (b) The Company will furnish you, without charge, three signed copies of the Registration Statement as originally filed with the Commission and of each amendment to it, including financial statements and all exhibits thereto, and will also furnish to you, such number of conformed copies of the Registration Statement (without exhibits) as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which the Underwriter you shall not have been advised previously or to which the Underwriter you shall reasonably object in writing promptly after being so advised.
6.03(d) Prior to the effective date of the Registration Statement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of preliminary prospectus. The Company consents to the use, in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers to whom Shares may be sold, prior to the effective date of the Registration Statement, of each preliminary prospectus so furnished by the Company.
(e) On the Effective Date effective date of the Registration Statement and thereafter from time to time, for such period as in the written opinion of counsel for the Underwriter a Prospectus prospectus is required by law to be delivered in connection with sales by an Underwriter or a Selected Dealerdealer, the Company will deliver to the Underwriter you and each Selected Dealer dealer through whom Units Shares may be sold, sold without charge, charge (except as provided below) as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of such Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Units Shares are offered by the Underwriter and by Selected Dealers dealers through whom Units Shares may be sold, both in connection with the offering or sale of the Units Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company, or in the opinion of counsel for the Underwriter, requires that a material fact be stated in the Prospectus (as then amended or supplemented) in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act or any other law, the Company, Company at its own expense, expense (except as provided below) will forthwith prepare and file with the Commission an appropriate amendment or supplement thereto, and will furnish to the Underwriter and each Selected Dealer dealer through whom Units Shares may be sold, sold without chargecharge (except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in connection with the registration or qualification of the Shares for offer and sale by you and by dealers through whom Shares may be sold under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the service of process in suits, other than those arising out of the offer and sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will file all reports and other information that it is required to file after the Closing Date pursuant to Section 13 or Section 15(d), as the case may be, of the Exchange Act as necessary to permit the Underwriter to serve, in its sole discretion, as a market maker with respect to the Common Stock.
(h) The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending no later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and any applicable regulation.
(i) During the period of five years after the Closing Date, the Company will furnish to you without charge (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission and (ii) from time to time such other proper information concerning the business and financial condition of the Company as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Community First Bancorp Inc)