Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 3 contracts

Sources: Underwriting Agreement (Berkley W R Corp), Underwriting Agreement (Berkley W R Corp), Underwriting Agreement (Berkley W R Corp)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (a) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a ~~reasonable opportunity~~ copy or to ~~comment~~ which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Notes and (c) file on a timely basis all reports and any ~~such proposed amendment~~ definitive proxy or ~~supplement~~information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Notes by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, the Company ~~shall~~ will not file any such ~~proposed~~ report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object; and~~ objected in writing or which is not in compliance with the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedExchange Act. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (a) not make any offer relating to the ~~Securities~~ Notes that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of each Issuer Free Writing Prospectus included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (c) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (d) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (diii) The Company will prepare a final term sheet ~~relating to~~ (the ~~Securities, containing only information that describes~~ “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives and as described on Schedule II, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (iv) The Company will advise the Representatives promptly (a) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Notes, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Notes for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or such suspension of qualification. (v) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Notes within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act. (vi) If at any time when Notes remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form ~~consented~~ satisfactory to the Representatives, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will ~~file~~ use its best efforts to cause such ~~final term sheet~~ registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (viii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required ~~by Rule 433(d)(5)(ii~~under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish upon request to the Representatives signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith. (ix) of The Company will comply with the Securities Act and the Rules and Regulations ~~following~~ and the ~~date such final terms have been established for all classes~~ Exchange Act, and the rules and regulations of the ~~offering~~ Commission thereunder, so as to permit the completion of the ~~Securities~~distribution of the Notes as contemplated in this Agreement and the Prospectus. ~~Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Subject to the ~~use by any Underwriter~~ provisions of Section 4(i) above, if during the period in which a ~~free writing~~ prospectus ~~that contains only~~ (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing the preliminary terms of~~ under the Securities Act) is required by law to be delivered by an Underwriter or ~~their offering or (y) information that describes the final terms~~ a dealer any event shall occur as a result of ~~the Securities or their offering and that is included~~ which, in the ~~final term sheet~~ judgment of the Company ~~contemplated in the first sentence of this subsection~~ or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the ~~Underwriters is (~~Underwriters, it becomes necessary to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (x) Subject to the provisions of Section 4(i) above, if the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (b) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fxi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of ~~at least 12~~ twelve consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gxii) The Company will, for a period of five years from the Closing Date, furnish upon request to the Representatives, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year and the Company will furnish upon request to the Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders. (xiii) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplementnot, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities beginning on ~~the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from~~ the date hereof and continuing to and including the ~~date 30 days after~~ business day following the ~~date of the Prospectus~~Closing Date, ~~not to~~ offer, sell, contract to ~~sell, pledge, grant any option to purchase, make any short sale~~ sell or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any debt securities of or guaranteed by the Company ~~that~~ which are substantially similar to the ~~Securities,~~ Notes without the Representatives’ prior written ~~consent of the Representatives~~consent. (kxiv) ~~Whether or not~~ The Company will use the ~~transactions contemplated in~~ net proceeds from the sale of the Notes pursuant to this Agreement ~~are consummated or this Agreement is terminated~~in the manner specified under the heading “Use of Proceeds” in the Prospectus. (xv) The Company will use its reasonable best efforts to meet the requirements to qualify as a real estate investment trust under the Code for the taxable year ending December 31, 2021 and for each of its succeeding taxable years for so long as the Board of Directors of the Company ~~will pay or cause to be paid all expenses incident to~~ deems it in the ~~performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ best interests of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements stockholders to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeremain so qualified.

Appears in 3 contracts

Sources: Underwriting Agreement (Welltower Inc.), Underwriting Agreement (Welltower Inc.), Underwriting Agreement (Welltower Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Units by the Underwriters. (b) The Company will advise the ~~Representatives~~ Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its reasonable best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company ~~represents~~ will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and ~~agrees that~~will make such applications, ~~unless~~ file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it ~~obtains~~ is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~prior consent~~ Representative may reasonably request for distribution of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingSecurities. (d) The Company will ~~prepare~~ deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ four signed copies of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (e) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company will use its best efforts promptly to prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus. (f) If the General Disclosure Package is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company will use its best efforts promptly ~~prepare and~~ to prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and RegulationsGeneral Disclosure Package. (g) The Company will ~~furnish~~ make generally available to ~~the Representatives copies of the Registration Statement~~its security holders, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~it is practicable to do so, ~~with respect to~~ but in any ~~amendment or supplement~~event not later than 15 months after the Effective Date, ~~during~~ an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the ~~period mentioned~~ Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise the Representative in ~~Section 4(e) above and in~~ writing when such ~~quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents~~statement has been so made available. (h) ~~The~~ Prior to the Closing Date, the Company will ~~arrange for~~ furnish to the ~~qualification~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the ~~Securities~~ Company for ~~sale under~~ any period subsequent to the ~~laws of such jurisdictions as~~ period covered by the ~~Representatives reasonably designate~~ most recent financial statements appearing in the Registration Statement and ~~will continue such qualifications in effect so long as required for~~ the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectProspectus. (i) The Company will use its ~~commercially~~ reasonable best efforts to effect and maintain the listing of the Securities on the ~~New York Stock Exchange within 30 days of the Closing Date~~AMEX. (j) ~~During~~ The Company shall apply the ~~period beginning from~~ net proceeds of its sale of the ~~date hereof~~ Securities as set forth in the Registration Statement, General Disclosure Package and ~~continuing~~ the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (k) The Company shall cause the proceeds of the offering to be held in the Trust Fund to be invested only in "government securities" (as defined in the Trust Agreement) with specific maturity dates as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise use its reasonable best efforts to conduct its business (both prior to and ~~including the date 30 days~~ after the ~~date~~ consummation of an initial Business Combination) in a manner so that it will not become subject to the Investment Company Act. (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 the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of,~~ price of any securities of the Company. (m) The Company ~~that~~ will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Units are ~~substantially similar~~ offered in connection with the Directed Unit Program. (n) For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the ~~Securities~~Company will use its reasonable best efforts to maintain the registration of the Securities and the Representative's Securities under the provisions of the Exchange Act. For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated or the Representative shall no longer hold the Representative's Purchase Option, the Company will not deregister the Units under the Exchange Act without the prior written consent of the ~~Representatives~~Representative. (ko) ~~Whether~~ For a period of five years from the Effective Date, or ~~not~~ until such earlier date upon which the ~~transactions contemplated in this Agreement are consummated or this Agreement~~ Company is ~~terminated~~required to be liquidated, the ~~Company will pay or~~ Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to ~~be paid all expenses incident~~ review (but not audit) the Company's financial statements for each of the first three fiscal quarters prior to the ~~performance~~ announcement of ~~its obligations under this Agreement, including: (i)~~ quarterly financial information and the ~~fees, disbursements and expenses~~ filing of the Company~~’s counsel and~~ 's Form 10-Q quarterly reports. (p) The Company will not consummate a Business Combination with any entity which is affiliated with any Initial Stockholder. The Company shall not pay any Initial Stockholder or any of their affiliates or family members any fees or compensation from the Company~~’s accountants~~ , for services rendered to the Company prior to, or in connection ~~with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture~~with, the ~~Registration Statement, any preliminary prospectus,~~ consummation of an initial Business Combination; provided that the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Initial Stockholders shall be entitled to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of reimbursement from the Company for ~~any “road show” undertaken in connection with the marketing of the offering of the Securities, and one~~their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (q) For a period of five years from the ~~listing~~ Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~Securities on~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the ~~New York Stock Exchange~~ Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (~~viii~~ii) ~~all other costs~~ such additional documents and ~~expenses incident~~ information with respect to the ~~performance~~ Company and the affairs of ~~the obligations~~ any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a confidentiality agreement reasonably satisfactory to the Company. (r) For a period of five years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form S-1 (or other appropriate form) for the registration of the Warrants and the Representative's Warrants under the Act. (s) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants. (t) In the event any person or entity (excluding attorneys, accountants, engineers, environmental or labor consultants, investigatory firms, technology consultants and specialists and similar service providers that are not affiliated or associated with the NASD and are not brokers or finders) is engaged, in writing, to assist the issuer in finding or evaluating a merger candidate, the Company will provide the following to the NASD and the Representative prior to consummation of an initial Business Combination: (i) copies of agreements governing said services (which ~~provision~~ details or agreements may be appropriately redacted to account for privilege or confidentiality concerns), and (ii) a justification as to why the person or entity providing the merger and acquisition services should not be considered an "underwriter or related person" with respect to the Company's initial public offering as such term is ~~not otherwise~~ defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the proxy statement which the Company will file for purposes of soliciting stockholder approval for the Business Combination. (u) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (v) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the "Audited Financial Statements") reflecting the receipt by the Company of the proceeds of the initial public offering. As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company's Audited Financial Statements. (w) The Company shall advise the NASD if it is aware that any 5% or greater stockholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of an NASD member participating in the distribution of the Securities. (x) The Company hereby agrees that the Company shall not issue (ii) any shares of Common Stock or any options or other securities convertible into Common Stock other than in connection with a Business Combination as described in the Prospectus, or (ii) any shares of Preferred Stock which participate in any manner in the Trust Fund or which vote as a class with the Common Stock on a Business Combination. (y) The Company hereby agrees that prior to commencing its due diligence investigation of any operating business or financial services industry assets which the Company seeks to acquire ("Target Business") or obtaining the services of any vendor or service provider it will use its reasonable best efforts to attempt to cause the Target Business or the vendor or service provider to execute a waiver letter in the form attached hereto as Exhibit A and B, respectively. It is ~~understood~~understood that the Company may not be able to obtain such letters in some or all circumstances and that, ~~however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below~~nonetheless, the ~~Underwriters will pay all~~ Company may still proceed with such due diligence investigations and enter into agreements with such parties or obtaining of ~~their costs~~ services, as applicable. Prior to the Closing Date, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ~~expenses~~▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall execute a waiver letter in the form attached hereto as Exhibit C, ~~including fees~~ each other officer and ~~disbursements~~ director of ~~their counsel~~the Company shall execute a waiver letter in the form attached hereto as Exhibit D and JovFunds Management Inc. shall execute a waiver in the form attached hereto as Exhibit E. (z) The Company shall not take any action or omit to take any action that would cause the Company to be in material breach or violation of its certificate of incorporation or by-laws. (aa) The Company agrees: (i) that, ~~transfer taxes payable on resale~~ prior to the consummation of any Business Combination, it will submit such transaction to the Company's stockholders for their approval ("Initial Transaction Vote") even if the nature of the ~~Securities by them~~ acquisition is such as would not ordinarily require stockholder approval under applicable state law; and ~~any advertising expenses connected with any offers they may make.~~(ii) that, in the event that the Company does not effect a Business Combination within 18 months from the Closing Date (subject to extension for an additional six-month period, as described in the Prospectus), the Company will be liquidated as described in the Prospectus. With respect to the Initial Transaction Vote, the Comp

Appears in 3 contracts

Sources: Underwriting Agreement (Tailwind Financial Inc.), Underwriting Agreement (Tailwind Financial Inc.), Underwriting Agreement (Tailwind Financial Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rule 430A, 430B or 430C under the Act, (B) not, prior to the completion of the distribution of the Notes by the Underwriters, file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the completion of the distribution of the Notes by the Underwriters. (b) The Company will (i) not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a “free writing prospectus” (as defined in Rule 405 under the Act) prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (d) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal~~ comments from the Commission with respect to ~~amend or supplement~~ the Registration Statement, the ~~Prospectus or~~ Prospectus, the General Disclosure Package ~~and will afford~~ or any document incorporated by reference therein, (C) of any request of the ~~Representatives~~ Commission for amendment of the Registration Statement or the filing of a ~~reasonable opportunity to comment on~~ new registration statement or any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and ~~the Company will also advise the Representatives promptly~~ (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (ce) If at any time when Notes remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (f) The Company ~~represents~~ agrees to pay the required filing fees to the Commission relating to the Notes within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and ~~agrees that~~otherwise in accordance with Rules 456(b) and 457(r) under the Act. (g) The Company will cooperate with the Representatives in endeavoring to qualify the Notes for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, ~~unless~~ file such documents, and furnish such information as may be reasonably required for that purpose; provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or to take any action that would subject itself to taxation in any jurisdiction where it ~~obtains~~ is not now so qualified or required to file such a consent or subject to such taxation. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the ~~prior consent~~ Representatives may reasonably request for distribution of the Notes. (h) The Company will deliver to, or upon the order of, the Representatives, ~~and each Underwriter represents and agrees that~~from time to time, ~~unless it obtains the prior consent~~ as many copies of ~~the Company and the Representatives, it has not made and will not make~~ any ~~offer relating to the Securities that would constitute an~~ Preliminary Prospectus or any Issuer Free Writing ~~Prospectus~~Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer (the “Prospectus Delivery Period”), as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that ~~would otherwise constitute a “free writing prospectus,”~~ may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as ~~defined in Rule 405 of~~ the Representatives may reasonably request. (i) The Company will comply with the Act, the Rules and Regulations, ~~required to be filed with~~ the ~~Commission. Any such free writing prospectus consented to by the Company~~ Exchange Act and the ~~Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated~~ Trust Indenture Act, and ~~agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433~~ the rules and regulations of the ~~Rules and Regulations~~Commission thereunder, ~~and has complied and will comply with~~ so as to permit the ~~requirements of Rules 164 and 433~~ completion of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms distribution of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company Notes as contemplated in this Agreement and the ~~first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Prospectus. If during the ~~Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing~~ Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealerDelivery Period, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (j) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances existing at the time the General Disclosure Package is being used, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances existing when it is so used, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fk) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as it is practicable to do so, but in any event not later than 16 months ~~beginning~~ after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules and Regulations~~Act. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (jl) During the period beginning ~~from~~ on the date hereof and ~~continuing to and including~~ ending on the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the SecuritiesClosing Date, without the prior written consent of each of the Representatives~~. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~, the Company will ~~pay~~ not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Notes. (m) The Company shall apply the net proceeds from the sale of the Notes in the manner described under the caption “Use of Proceeds” in each of the General Disclosure Package and the Prospectus. (n) The Company will not take, directly or indirectly, any action designed to or that constitutes or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Notes. (o) The Company will cause to be ~~paid all expenses incident~~ furnished to the ~~performance~~ Commission the opinion required pursuant to Item 601(b)(5)(i) of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities Regulation S-K promulgated under the ~~Securities~~ Act ~~and all other fees or expenses in connection with~~ within the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may maketime required thereby.

Appears in 3 contracts

Sources: Underwriting Agreement (Packaging Corp of America), Underwriting Agreement (Packaging Corp of America), Underwriting Agreement (Packaging Corp of America)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each Underwriter ~~as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and As soon as possible after the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to Rule 424, setting forth, among other things, the necessary information with respect to the terms of offering of the Securities. The Company ~~has complied~~ will promptly deliver to the Representative and to counsel for the Underwriters, to the extent not previously delivered, one fully executed copy or one conformed copy, certified by an officer of the Company, of the Registration Statement, as originally filed, and of all amendments thereto, heretofore or hereafter made, (other than those relating solely to securities other than the Securities), including any post-effective amendment (in each case including all exhibits filed therewith and all documents incorporated therein not previously furnished to the Representative), including signed copies of each consent and certificate included therein or filed as an exhibit thereto, and will ~~comply with Rule 433~~ deliver to the Representative for distribution to the Underwriters as many conformed copies of the ~~Rules~~ foregoing (excluding the exhibits, but including all documents incorporated therein) as the Representative may reasonably request. The Company will also send to the Underwriters as soon as practicable after the date of this Agreement and ~~Regulations~~thereafter from time to time as many copies of the Prospectus as the Representative may reasonably request for the purposes required by the Securities Act. (b) ~~The Company will advise~~ During such period (not exceeding nine months) after the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes commencement of the offering of the ~~Securities. Any such final term sheet~~ Securities as the Underwriters may be required by law to deliver a Prospectus, if any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Representative shall occur, which in the Company's opinion 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 ~~an Issuer Free Writing~~ delivered to a purchaser, or if it is necessary to amend the Prospectus to comply with the Securities Act, the Company will forthwith at its expense prepare and ~~a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ furnish to the ~~use~~ Underwriters and dealers named by ~~any Underwriter~~ the Representative a reasonable number of copies of a ~~free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities~~ supplement or ~~their offering~~ supplements or ~~(y) information that describes the final terms of the Securities~~ an amendment or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating amendments to the ~~Securities~~ Prospectus which will supplement or amend the Prospectus so that as ~~in the opinion of counsel for the Underwriters is (~~supplemented or ~~but for the exemption in Rule 172 would be) required to be delivered under~~ amended it will comply with the Securities Act ~~in connection with sales by~~ and will not contain any ~~Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or 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 the Prospectus is delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the commencement of the offering of the Securities, the Company, upon the request of the Representative, will furnish to the Representative, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or ~~if for any other reason it shall be necessary during~~ supplements or amendments to the ~~same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply~~ Prospectus, complying with ~~the provisions~~ Section 10(a) of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (fc) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as reasonably practicable, but in any event not later than 16 months ~~beginning~~ after the ~~date~~ end of ~~this Agreement and satisfying~~ the fiscal quarter in which the filing of the Prospectus pursuant to Rule 424 occurs, an earnings statement (in form complying with the provisions of Section 11(a) of the Securities ~~Act and Rule 158~~ Act, which need not be certified by independent public accountants) covering a period of twelve months beginning not later than the first day of the ~~Rules and Regulations~~Company's fiscal quarter next following the filing of the Prospectus pursuant to Rule 424. (gd) The Company will ~~furnish~~ use its best efforts promptly to do and perform all things to be done and performed by it hereunder prior to the ~~Representatives copies~~ Closing Date and to satisfy all conditions precedent to the delivery by it of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsSecurities. (he) The Company will ~~arrange for~~ advise the ~~qualification~~ Representative promptly of the ~~Securities~~ filing of the Prospectus pursuant to Rule 424 and of any amendment or supplement to the Prospectus or Registration Statement or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be entered, use its best efforts to obtain the prompt removal thereof. (f) The Company will use its best efforts to qualify the Securities, for offer and sale under the Blue Sky or legal investment laws of such jurisdictions as the ~~Representatives reasonably designate~~ Representative may designate, and will ~~continue~~ file and make in each year such ~~qualifications in effect so long~~ statements or reports as are or may be reasonably required ~~for~~ by the ~~distribution~~laws of such jurisdictions; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify ~~to do business~~ as a foreign corporation or dealer in ~~any jurisdiction~~ securities, or to file ~~or consent or otherwise subject itself~~ any general consents to service of process ~~or taxation in~~ under the laws of any ~~jurisdiction where it is not already so~~ jurisdiction. The fees and disbursements of Underwriters' counsel shall be paid by the Underwriters (subject~~. (i) The~~ , however, to the provisions of paragraph 8 requiring payment by the Company ~~will use its commercially reasonable efforts to effect the listing~~ of ~~the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof~~ fees and ~~continuing to and including the date 30 days after the date of the Prospectus,~~ expenses not to ~~offer~~exceed $5,000); provided, ~~sell~~however, ~~contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company~~ that ~~are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or~~ if this Agreement is ~~terminated~~terminated in accordance with the provisions of paragraph 9, 10 or 12, the Company ~~will pay or cause to be paid all expenses incident to~~ shall reimburse the ~~performance of its obligations under this Agreement, including: (i)~~ Representative for the ~~fees, disbursements and expenses~~ account of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for ~~rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and~~ the fees and disbursements of ~~counsel~~ Underwriters' counsel. The Company shall not be required to pay any amount for ~~the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging~~ any expenses of ~~officers and employees~~ the Representative or of any other of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that Underwriters except as provided in this ~~Section, Section 6 entitled “Indemnity~~ paragraph 7 and ~~Contribution,” and the last~~ in paragraph ~~of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ 8. The Company shall not in any event be liable to any of the ~~Securities by them and any advertising expenses connected with any offers they may make~~Underwriters for damages on account of the loss of anticipated profit.

Appears in 3 contracts

Sources: Underwriting Agreement (Carolina Power & Light Co), Underwriting Agreement (Carolina Power & Light Co), Underwriting Agreement (Carolina Power & Light Co)

Covenants of the Company. ~~In further consideration of~~ The Company agrees with the ~~agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows~~Manager: (a) ~~The Company~~ To notify the Manager promptly of the time on or after the date of this Agreement when the Registration Statement or any amendment to the Registration Statement has been filed or ~~will~~ become effective or when the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any supplement to any of the foregoing has been filed; to prepare and file with the Commission, promptly upon the Manager's request, any amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus that, in the Manager's reasonable opinion, may be necessary or advisable in connection with the offering of the Shares by the Manager; and to cause the Basic Prospectus, the Prospectus Supplement and the Prospectus and each ~~Statutory~~ amendment or supplement to the Basic Prospectus, the Basic Prospectus ~~(including~~ or the ~~Prospectus)~~ Prospectus to be filed with the Commission as required pursuant to ~~and in accordance with~~ the applicable paragraph of Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it~~ Act (without reliance on Rule 424(b)(8)) or, in the case of any Incorporated Document, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed; to cause each Permitted Free Writing Prospectus to be filed with the Commission as required by Rule 433 of the Act (to the extent such filing is ~~first used~~ required by such rule) and to retain copies of each Permitted Free Writing Prospectus that is not required to be filed with the ~~execution and delivery of this Agreement. The Company has complied and will comply~~ Commission in accordance with Rule 433 of the ~~Rules and Regulations~~Act. (b) ~~The Company will~~ To promptly advise the ~~Representatives~~ Manager, confirming such advice in writing, of any suspension of the Manager's obligations under Rule 15c2-8 under the Exchange Act or any request by the Commission for amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus (in each case including, without limitation, any Incorporated Document) or for additional information with respect thereto, or of notice of examination, institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to promptly advise the Manager of any proposal to amend or supplement the Registration Statement, the Basic Prospectus, the Prospectus or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file~~ Permitted Free Writing Prospectus (other than any ~~such proposed~~ amendment or supplement to ~~which~~ be effected by the ~~Representatives reasonably object; and the Company will also advise the Representatives promptly~~ Company's filing of a report, document or proxy or information statement pursuant to Sections 13, 14 or 15(d) of the Exchange Act, which shall be subject to the provisions of clause (2) of Section 4(d) below), and to provide the Manager and its counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing of and not to file or use any such amendment or supplement (other than any prospectus supplement relating to the offering of other securities (including, without limitation, the Common Stock)) to which the Manager shall have reasonably objected in writing. (c) To make available to the Manager, as soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Manager, as many copies of the ~~institution by~~ Prospectus and each Permitted Free Writing Prospectus (or of the ~~Commission of~~ Prospectus or any ~~stop order proceedings in respect~~ Permitted Free Writing Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Manager may reasonably request for the purposes contemplated by the Act; in case the Manager is required to deliver (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be. (1) Subject to clause (2) of this Section 4(d), to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and (2) to provide the Manager, for its review, with a copy of any ~~part thereof~~ reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act a reasonable amount of time prior to any proposed filing, and to promptly notify the Manager of such filing. (e) To pay the fees applicable to the Registration Statement in connection with the offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule 456(b) and Rule 457(r) under the Act. (f) If the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Manager, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Manager, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (d) promptly notify the Manager of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (g) If immediately prior to the third anniversary (the "Renewal Deadline") of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Manager, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Manager. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Manager, and will use its best efforts to ~~prevent~~ cause such registration statement to be declared effective within 180 days after the ~~issuance~~ Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of ~~any~~ the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such ~~stop order and to obtain~~ new automatic shelf registration statement or such new shelf registration statement, as ~~soon as possible its lifting, if issued~~the case may be. (ch) ~~The Company represents and agrees that, unless it obtains~~ To promptly notify the ~~prior consent~~ Manager of the ~~Representatives~~happening of any event that could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, ~~and each Underwriter represents and agrees that, unless it obtains~~ in the ~~prior consent~~ light of the ~~Company~~ circumstances under which they are made, not misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the ~~Representatives~~Company's expense, ~~it has not made and will not make any offer relating~~ to the ~~Securities that would constitute an Issuer Free Writing Prospectus,~~ Manager promptly such amendments or ~~that would otherwise constitute a “free writing prospectus,”~~ supplements to such Prospectus as ~~defined in Rule 405~~ may be necessary to reflect any such change; and to promptly notify the Manager of the ~~Rules and Regulations, required to be filed with~~ happening of any event that could require the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each making of any change in any Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information so that ~~describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file~~ such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus ~~for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x)~~ would not conflict with information ~~describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included~~ contained in the ~~final term sheet of~~ Registration Statement, the ~~Company contemplated in~~ Prospectus or the ~~first sentence of this subsection~~ Incorporated Documents or ~~(ii) other information~~ so that ~~is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any~~ such ~~free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer~~ Permitted Free Writing Prospectus ~~for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172~~ would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the Company's expense, to the Manager promptly such amendments or ~~if for any other reason it shall~~ supplements to such Permitted Free Writing Prospectus as may be necessary ~~during the same period~~ to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, eliminate any such ~~amendment~~ conflict or ~~supplement shall constitute a waiver of~~ reflect any ~~of the conditions set forth in Section 5 hereof~~such change. (fi) ~~As soon~~ To furnish such information as ~~practicable, but not later than 16 months, after~~ may be required and otherwise to cooperate in qualifying the ~~date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement~~ Shares for offering and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the securities or blue sky laws of such states or other jurisdictions as the ~~Representatives reasonably~~ Manager may designate and ~~will continue~~ to maintain such qualifications in effect so long as required for the ~~distribution~~distribution of the Shares; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify as a foreign corporation or to ~~do business~~ consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Manager of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or ~~to file~~ the initiation or ~~consent or otherwise subject itself to service~~ threatening of ~~process or taxation in~~ any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Dateproceeding for such purpose. (j) ~~During~~ To make generally available to its security holders, and to deliver to the Manager, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning ~~from the date hereof and continuing to and including the date 30 days~~ after the effective date of the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except~~ Registration Statement (as ~~provided hereunder of, any securities~~ defined in Rule 158(c) of the ~~Company that are substantially similar to~~ Act) as soon as is reasonably practicable after the ~~Securities, without~~ termination of such twelve-month period but not later than eighteen months after the ~~prior written consent~~ effective date of the ~~Representatives~~Registration Statement (as such date is defined in Rule 158(c) under the Act). (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company ~~will~~ shall pay ~~or cause to be paid~~ all expenses incident to the performance of its obligations under this Agreement, ~~including:~~ whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, including without limitation such costs, expenses, fees and taxes in connection with (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the ~~Indenture, the~~ Registration Statement, ~~any preliminary prospectus~~the Basic Prospectus, the Prospectus, ~~any Issuer~~ each Prospectus Supplement, each Permitted Free Writing Prospectus and any amendments ~~and~~ or supplements ~~to any of the foregoing, including all printing costs associated therewith~~thereto, and the ~~mailing~~ printing and ~~delivering~~ furnishing of copies of each thereof to the ~~Underwriters~~ Manager (including costs of mailing and ~~dealers, in the quantities hereinabove specified~~shipment), (ii) ~~all costs and expenses related to~~ the ~~transfer~~ registration, issue, sale and delivery of the ~~Securities to the Underwriters,~~ Shares including any stock or transfer taxes and stamp or ~~other taxes~~ similar duties payable ~~thereon~~upon the sale, issuance or delivery of the Shares, (iii) the ~~cost~~ producing, word processing and/or printing of this Agreement, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing ~~certificates representing~~ and furnishing of copies of each thereof to the ~~Securities~~Manager (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state or foreign law (including the reasonable legal fees and filing fees and other disbursements of U.S. or other foreign counsel for the Manager) and the printing and furnishing of copies of any ~~fees charged by securities rating services for rating the Securities~~blue sky surveys, (v) the listing of the Shares on the NYSE and any other securities exchange and any registration thereof under the Exchange Act, (vi) any filing with, and any review of the public offering of the Shares by, FINRA, including the reasonable legal fees and ~~expenses of the Trustee and any agent of the Trustee and the fees and~~ other reasonable disbursements of counsel for the ~~Trustee in connection with the Indenture~~ Manager relating to FINRA matters and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) ~~any~~ the reasonable fees and disbursements of the Company's and Manager's counsel and of the Company's accountants. Except as set forth on Annex I hereto, the Manager will pay all of its other out-of-pocket costs and expenses incurred in connection with entering into this Agreement and the ~~listing~~ transactions contemplated by this Agreement, including, without limitation, travel and similar expenses, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated. (l) To apply the net proceeds from the sale of the ~~Securities on~~ Shares in the ~~New York~~ manner set forth under the caption "Use of proceeds" in the Prospectus Supplement. (m) Not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under the Act of, any shares of Common Stock ~~Exchange and (viii) all~~ or any other ~~costs and expenses incident to the performance of the obligations~~ securities of the Company ~~hereunder~~ that are substantially similar to the Common Stock ("Similar Securities") or any securities convertible into or exchangeable or exercisable for ~~which provision is not otherwise made~~ Common Stock or Similar Securities (including without limitation, any options, warrants or other rights to purchase Common Stock or Similar Securities), in ~~this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,”~~ each case without giving the Manager at least three Trading Days' prior written notice specifying the nature of the proposed sale and the ~~last paragraph~~ date of ~~Section 8 below~~such proposed sale. Notwithstanding the foregoing, the ~~Underwriters will pay all~~ Company may (i) register the offer and sale of ~~their costs~~ the Shares through or to the Manager or any Alternative Manager pursuant to this Agreement or any Terms Agreement, Alternative Equity Distribution Agreement or Alternative Terms Agreement, as applicable; (ii) file registration statements relating to Common Stock that may be issued pursuant to the Company's (a) dividend reinvestment and ~~expenses~~stock purchase plan, ~~including fees~~ (b) director and ~~disbursements~~ executive compensation plans and (c) other employee benefit plans (in the case of ~~their counsel~~(a), ~~transfer taxes payable on resale~~ (b) and (c) above, as such plans are described in the Company's reports filed with the Commission under the Exchange Act); and (iii) issue shares of the Common Stock, issue options to purchase shares of the Common Stock or make grants of other equity awards, each pursuant to any of the ~~Securities~~ plans referred to in clause (ii) above. In the event that notice of a proposed sale is provided by ~~them~~ the Company pursuant to this Section 4(m), the Manager may suspend activity under this Agreement for such period of time as may be requested by the Company or as may be deemed appropriate by the Manager. (n) Not, at any time at or after the execution of this Agreement, to offer or sell any Shares by means of any "prospectus" (within the meaning of the Act), or use any "prospectus" (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Prospectus or a Permitted Free Writing Prospectus. (o) The Company will not, and will cause its Subsidiaries not to, take, directly or indirectly, any ~~advertising expenses connected with~~ action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in (i) the stabilization or manipulation of the price of any ~~offers they may make~~security of the Company to facilitate the sale or resale of the Shares or (ii) a violation of Regulation M. The Company shall notify the Manager of any violation of Regulation M by the Company or any Subsidiary or any of their respective officers or directors promptly after the Company has received notice or obtained knowledge of any such violation. (p) To use its best efforts to cause the Common Stock to be listed on the NYSE and to maintain such listing. (q) To advise the Manager 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 Manager pursuant

Appears in 3 contracts

Sources: Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc)

Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to to, and in accordance ~~with~~ with, Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (~~i)(x~~i)(A) information describing the preliminary terms of the Securities or their offering or (yB) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 ~~months,~~ months after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, ; (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, ; (iii) the cost of printing certificates representing the Securities, ; (iv) any fees charged by securities rating services for rating the Securities, ; (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, ; (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, ; (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock ~~Exchange~~ Exchange; and (viii) 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~~Section 4(k). It is understood, however, that except as provided in this ~~Section~~Section 4(k), Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 3 contracts

Sources: Underwriting Agreement (Berkley W R Corp), Underwriting Agreement (Berkley W R Corp), Underwriting Agreement (Berkley W R Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with the Representatives and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ In respect to each offering of Underwritten Securities, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as the ~~Prospectus~~Representatives shall reasonably request. (b) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), 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 ~~second business day following the earlier~~ date of execution of the ~~date it is first used and the execution and delivery of this~~ Terms Agreement. ~~The~~ If a Rule 462(b) Registration Statement is filed, the Company ~~has complied and will comply with~~ shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule ~~433~~ 111 of the ~~Rules and~~ 1933 Act Regulations. (bc) The Company will ~~advise~~ notify the Representatives ~~promptly~~ immediately, and confirm such notice in writing, of (i) the effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any such stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible its lifting, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingmoment. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at At any time when ~~a prospectus relating to~~ the ~~Securities as in the opinion of counsel for the Underwriters~~ Prospectus is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities~~ 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object. (e) The Company will deliver to the Representatives as soon as available as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request. (f) The Company will furnish to each 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 (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or ~~dealer,~~ the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. (g) If any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~General Disclosure Package~~ reasonable opinion of counsel for the Underwriters, 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 delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as ~~then~~ so amended or ~~supplemented would~~ supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the time it is delivered to a purchaser, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, and the Company ~~promptly~~ will ~~notify~~ furnish to the ~~Representatives~~ Underwriters a reasonable number of copies of such ~~event, and if such event shall occur~~ amendment or ifsupplement. (h) The Company will endeavor, in ~~the opinion of counsel for~~ cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to (i) qualify as a foreign corporation in a jurisdiction it is ~~necessary at~~ not so qualified, (ii) file any ~~time~~ general consent to ~~amend~~ service of process or (iii) take any actions that would subject it to income taxation in any such jurisdiction. In each jurisdiction in which the ~~General Disclosure Package or the Prospectus to comply with the~~ Underwritten Securities ~~Act~~have been so qualified, the Company will ~~promptly prepare~~ file such statements and ~~file with~~ reports as may be required by the ~~Commission, at its own expense, an amendment or supplement which will correct~~ laws of such ~~statement or omission or an amendment which will~~ jurisdiction to continue such qualification in effect ~~such compliance. Neither~~ for so long as may be required for the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ distribution of the ~~conditions set forth in Section 5 hereof~~Underwritten Securities. (fi) ~~As soon as practicable, but not later than 16 months, after the date~~ With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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" (gas defined in said Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (ij) The Company will use ~~its commercially reasonable efforts to effect~~ the ~~listing~~ net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds." (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 Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, to the extent the Preferred Stock, Common Stock Warrants or Debt Securities are listed on the New York Stock ~~Exchange within 30 days~~ Exchange, the Company will use its best efforts to maintain the listing of any such Underwritten Securities listed on the ~~Closing Date~~New York Stock Exchange. (jm) In respect to each offering of Debt Securities, the Company will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee. (n) The Company will take all reasonable action necessary to enable Standard & Poor's Corporation ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable. (o) During the period ~~beginning from~~ specified in the ~~date hereof and continuing to and including the date 30 days after the date of the Prospectus~~applicable Prospectus Supplement, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ the Company ~~that are substantially similar to~~ and the ~~Securities~~Partnerships will not, without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., directly or indirectly, sell, offer to sell, transfer, hypothecate, grant any option for the ~~Representatives~~sale of, or otherwise dispose of, (i) any securities of the same class or series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement) or any security convertible into or exchangeable for such Underwritten Securities and (ii) if such Prospectus Supplement relates to Common Stock Warrants or Debt Securities or Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) grants of options, and the issuance of shares in respect of such options; (ii) the issuance of shares and units pursuant to a dividend reinvestment plan or stock purchase plan; (iii) the issuance of Common Stock on the exchange of Units; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property. (kp) ~~Whether or not~~ With respect to the ~~transactions contemplated in this Agreement~~ Common Stock issuable on exercise of Common Stock Warrants and the conversion of any Debt Securities and Preferred Stock (including Preferred Stock represented by Depositary Shares) if such securities are ~~consummated or this Agreement is terminated~~convertible into Common Stock, the Company will ~~pay~~ reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon exercise of the Common Stock Warrants and conversion of the Debt Securities or ~~cause to be paid all expenses incident~~ Preferred Stock. (q) With respect to the ~~performance~~ Common Stock issuable on exercise of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel~~ Common Stock Warrants and the ~~Company’s accountants in connection with the registration~~ conversion of any Debt Securities and ~~delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture~~Preferred Stock (including Preferred Stock represented by Depositary Shares) if such securities are convertible into Common Stock, the ~~Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Company will use its best efforts to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities list such Common Stock on the New York Stock ~~Exchange and~~ Exchange. (~~viii~~r) ~~all other costs and expenses incident~~ The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code. (s) During the period from the Closing Time until five years after the Closing Time, the Company will deliver to the ~~performance~~ Representatives, (i) promptly upon their becoming available, copies of ~~the obligations~~ all current, regular and periodic reports of the Company ~~hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ mailed to its stockholders or filed with any securities exchange or with the ~~last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ Commission or any governmental authority succeeding to any of the ~~Securities by them~~ Commission's functions, and ~~any advertising expenses connected with any offers they~~ (ii) such other information concerning the Company and the Partnerships as the Representatives may ~~make~~reasonably request.

Appears in 2 contracts

Sources: Terms Agreement (Carramerica Realty Corp), Terms Agreement (Carramerica Realty Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:~~ (a) The Company ~~has filed~~ shall promptly (i) file a Form 8-K reporting entry into this Agreement and appending or ~~will file each Statutory Prospectus~~ incorporating by reference this Agreement as an exhibit thereto and (ii) make the ad hoc release and disclosure notification required pursuant to Swiss law, such disclosure including the ~~Prospectus) with~~ aggregate number of securities held by the ~~Commission pursuant to and in accordance with Rule 424(b) not later than~~ Company, the ~~second business day following the earlier of the date it is first used~~ Shareholders and the ~~execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations~~Icahn Designees as a group acting in concert (as defined under Swiss law). (b) The Company ~~will advise~~ shall provide the ~~Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package~~ Shareholders and ~~will afford the Representatives~~ their counsel with a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly copy of the Form 8-K (and any similar filing, ad-hoc release or notification required pursuant to Swiss law as a result of this Agreement) referenced in clause (a) above in advance (but in no event later than one day) of filing such Form 8-K (or any similar filing required pursuant to Swiss law as a result of this Agreement) with the SEC (or applicable Swiss authority) and shall consider any ~~such amendment or supplement and of the institution~~ reasonable comments proposed in a timely manner by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedShareholders. (c) ~~The Company represents~~ From the date of this Agreement and at all times during the Covered Period, (A) the Board agrees ~~that, unless it obtains~~ not to form an Executive Committee (or any other committee with functions similar to those customarily granted to an executive committee) and (B) the ~~prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and~~ Board will not ~~make~~ form any ~~offer relating~~ new committee without offering to at least one Icahn Designee the ~~Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required~~ opportunity to be ~~filed with the Commission. Any~~ a member of such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingcommittee. (d) ~~The~~ Except as expressly permitted by this Agreement, from the date of this Agreement and at all times during the Covered Period, the Company ~~will prepare a final term sheet relating~~ agrees not to seek the ~~Securities, containing only information that describes the final terms~~ removal of the ~~Securities and otherwise in a form consented to by~~ Icahn Designees (or the ~~Representatives~~Additional Shareholders Candidate, ~~and will file such final term sheet within~~ if applicable) from the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementBoard. (e) IfThe Company shall not propose at the 2014 Meeting to adopt an authorized share capital, at or propose any ~~time when a prospectus relating~~ related amendment to the ~~Securities as~~ Articles, of more than 6% of the Company's share capital registered in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs Commercial Register as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 date hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after From the date of this Agreement and ~~satisfying~~ at all times during the ~~provisions~~ Covered Period, the Company agrees not to adopt a Rights Plan (as defined below), unless such Rights Plan is approved by a majority of ~~Section 11(a~~the Board, which majority shall include the affirmative vote of at least one Icahn Designee (or the Additional Shareholders Candidate, if applicable). For purposes of this Agreement, a “Rights Plan” shall mean any plan or arrangement (including any related rights agreement) of the ~~Securities Act and Rule 158~~ sort commonly referred to as a “rights plan” or “stockholder rights plan” or “shareholder rights plan” or “poison pill” or that is designed to prevent or make more difficult a hostile takeover of the ~~Rules and Regulations. (g) The Company will furnish~~ corporation by increasing the cost to a potential acquirer in such a takeover either through the ~~Representatives copies~~ distribution of new rights, shares of common stock or preferred stock or any other security or device that may be issued to stockholders of the ~~Registration Statement~~corporation at a substantial discount to market value other than ratably to all stockholders of the corporation that carry severe redemption provisions, ~~including all exhibits~~favorable purchase provisions or otherwise, and any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsrights agreement. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Nomination and Standstill Agreement (Icahn Carl C), Nomination and Standstill Agreement (Transocean Ltd.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file or furnish on a timely basis all reports required to be filed or furnished by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “"free writing prospectus,” " (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the ~~Representatives is hereinafter referred~~ Commission under Rule 433 under the Act unless the Representative approves its use in writing prior to as first use (each, a “"Permitted Free Writing Prospectus~~.” The Company represents~~ "); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) The Company will prepare a final term sheet ~~relating to~~ (the ~~Securities, containing only information that describes~~ "Final Term Sheet") reflecting the final terms of the ~~Securities~~ Shares, in form and ~~otherwise in a form consented~~ substance satisfactory to by the ~~Representatives~~Representative, and ~~will~~ shall file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representative with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and ~~a Permitted Free Writing Prospectus for purposes of this Agreement.~~ will not use or file any such document to which the Representative or counsel to the Underwriters shall reasonably object. (d) [Intentionally omitted.] (e) The Company ~~also consents~~ will advise the Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the ~~use by~~ Prospectus or any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus ~~for purposes of this Agreement. (e) If, at~~ or any ~~time when a prospectus relating~~ amendment to the ~~Securities as in~~ Prospectus has been filed, (D) of any request of the ~~opinion~~ Commission for amendment of ~~counsel~~ the Registration Statement or for supplement to the ~~Underwriters is~~ General Disclosure Package or the Prospectus or for any additional information, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~but for~~ any order preventing or suspending the ~~exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by~~ use of any ~~Underwriter or dealer~~Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event ~~occurs~~ within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (f) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares. (g) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the "Prospectus Delivery Period") is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representative may reasonably request. (h) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (i) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~General Disclosure Package. (fj) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gk) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, if and as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ the General Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (hl) ~~The Company will arrange for the qualification~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Shares of the ~~Securities~~ Company or other securities convertible into or exchangeable or exercisable for ~~sale under the laws~~ shares of ~~such jurisdictions as the Representatives reasonably designate and~~ Common Shares or derivative of Common Shares (or agreement for such) will ~~continue such qualifications in effect so long as required~~ be made for ~~the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service~~ a period of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Representative, provided however, that for the avoidance of doubt this Section (l) shall not prohibit (1) the Company from granting awards of Common Shares reserved for issuance as of the date of this Agreement under its 2013 Equity Incentive Plan, and (2) the issuance of Common Shares pursuant to the Administrative Services Agreement filed as an exhibit to the Company's Registration Statement on Form F-1 declared effective on December 11, 2013 (File No. 333-192246). (km) ~~Whether~~ The Company has caused each officer and director and Scorpio Services Holding Limited to execute and deliver to you, on or ~~not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident~~ prior to the ~~performance~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the "Lockup Agreement"). (n) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ the General Disclosure Package and the Prospectus. (o) The Company shall not invest, ~~any Issuer Free Writing Prospectus and amendments and supplements to~~ or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Shares. (q) 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Scorpio Bulkers Inc.), Equity Underwriting Agreement (Scorpio Bulkers Inc.)

Covenants of the Company. ~~In further consideration of the agreements~~ The Company covenants and agrees with each of the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will ~~file each Statutory Prospectus~~ (~~including~~ i) if the ~~Prospectus~~Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement to become effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and Rule 497 of the Act Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Act Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. During any time when a Prospectus relating to the Securities is required to be delivered under the Act, the Company (i) will comply with all requirements imposed upon it by the Act and the Act Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with ~~Rule 424(b~~the provisions hereof and of the Prospectus, as then amended or supplemented, and (ii) will not ~~later than~~ file with the Commission the Prospectus, Term Sheet or the amendment referred to in the second ~~business day following~~ sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus, Term Sheet or any amendment to the ~~earlier~~ Registration Statement or any Rule 462(b) Registration Statement of which the ~~date it is first used~~ Representatives previously have been advised and furnished with a copy for a reasonable period of time prior to the ~~execution~~ proposed filing and ~~delivery of this Agreement~~as to which filing the Representatives shall not have given their consent. The Company ~~has complied~~ will prepare and ~~will comply~~ file with ~~Rule 433 of~~ the Commission, in accordance with the Act Rules and Regulations, promptly upon request by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Securities by the several Underwriters, 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 Representatives, 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 any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Representatives of each such filing or effectiveness. (b) The Company will advise the ~~Representatives~~ Representatives, promptly after receiving notice or obtaining knowledge thereof, of ~~any proposal to amend or supplement~~ (i) the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement or any amendment thereto or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Securities 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 Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order ~~and~~ and, if any such stop order is issued, to obtain the withdrawal thereof as ~~soon~~ promptly as ~~possible its lifting, if issued~~possible. (c) The Company ~~represents and agrees that, unless it obtains~~ will arrange for the ~~prior consent~~ qualification of the ~~Representatives,~~ Securities for offering and ~~each Underwriter represents~~ sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate and ~~agrees that, unless it obtains~~ will continue such qualifications in effect for as long as may be necessary to complete the ~~prior consent~~ distribution of the Securities, PROVIDED, HOWEVER, that in connection therewith the Company ~~and the Representatives, it has~~ shall not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, be required to ~~be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to~~ qualify as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined foreign corporation or to execute a general consent to service of process in ~~Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to~~ any ~~Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~jurisdiction. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time prior to the later of (i) the final date when a prospectus relating to the Securities ~~as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities~~ Act ~~in connection with sales by any Underwriter~~ or ~~dealer~~(ii) the Option Closing Date, any event occurs as a result of which the ~~General Disclosure Package or the Prospectus~~ Prospectus, as then amended or ~~supplemented~~ supplemented, would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with the ~~Securities Act~~Act or the Act Rules and Regulations, the Company will promptly notify the Representatives thereof and, subject to Section 5(a) hereof, will prepare and file with the Commission, at ~~its own~~ the Company's expense, an amendment to the Registration Statement or an amendment or supplement ~~which will correct~~ to the Prospectus that corrects such statement or omission or ~~an amendment which will effect~~ effects such compliance~~. Neither~~ . (e) The Company will, without charge, provide (i) to the Representatives ~~consent to~~and to counsel for the Underwriters a conformed copy of the Registration Statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto) or any Rule 462(b) Registration Statement, ~~nor~~ certified by the ~~Underwriters’ delivery of~~Secretary or an Assistant Secretary of the Company to be true and complete copies thereof as filed with the Commission by electronic transmission, (ii) to each other Underwriter, a conformed copy of such Registration Statement or any ~~such~~ Rule 462(b) Registration Statement and each amendment thereto (in each case without exhibits thereto) and (iii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement ~~shall constitute a waiver~~ thereto as the Representatives may reasonably request; without limiting the application of ~~any~~ clause (iii) of this sentence, the Company, not later than (A) 6:00 P.M., New York City time, on the date of determination of the ~~conditions set forth in Section 5 hereof~~public offering price, if such determination occurred at or prior to 10:00 A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 10:00 A.M., New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representatives may reasonably request for purposes of confirming orders that are expected to settle on the Firm Closing Date. (f) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its securityholders ~~an earning~~ and to the Representatives not later than forty-five days after the end of the period covered thereby, a consolidated earnings statement ~~covering~~ of the Company and its subsidiaries that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning ~~after~~ not later than the first day of the Company's fiscal quarter next following the effective date of this ~~Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations~~Agreement. (g) The Company will ~~furnish to~~ apply the ~~Representatives copies~~ net proceeds from the sale of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Securities as set forth under "Use of Proceeds" in the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will ~~arrange for~~ not, directly or indirectly, without the ~~qualification~~ prior written consent of Noble, on behalf of the ~~Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided~~Underwriters, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, hypothecate, offer to sell, contract to sell, pledge, grant any option to ~~purchase~~purchase or otherwise sell or dispose (or announce any offer, ~~make~~ sale, offer of sale, contract of sale, pledge, grant of any ~~short~~ option to purchase or other sale or ~~otherwise dispose~~disposition) of any Securities for a period of 180 days after the date hereof, except ~~as provided hereunder of~~pursuant to this Agreement and except for issuances pursuant to the exercise of employee stock options outstanding on the date hereof, ~~any~~ pursuant to the Company's dividend reinvestment plan or pursuant to the terms of convertible securities of the Company outstanding on the date hereof. (i) The Company will not, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (B) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except as provided in this Agreement). (j) The Company will obtain the agreements described in Section 7(h) hereof prior to the Firm Closing Date. (k) If at any time during the 25-day period after the Registration Statement becomes effective or the period prior to the Option Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in your opinion, the market price of the Securities has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event. (l) If the Company elects to rely on Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this Agreement and (ii) the time confirmations are ~~substantially similar~~ sent or given, as specified by Rule 462(b)(2). (m) The Company will use its best efforts to cause the Securities to be duly included for quotation on The Nasdaq Stock Market's Small Cap Market (the "Nasdaq Small Cap Market") prior to the Firm Closing Date. The Company will ensure that the Securities remain included for quotation on the Nasdaq Small Cap Market following the Firm Closing Date. (n) The Company will maintain a transfer agent and registrar for the Securities. (o) The Company will supply the Representatives with copies of all written correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Securities under the Act and under the Nasdaq Small Cap Market. (p) The Company will furnish to its securityholders annual reports containing financial statements audited by independent certified public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, as soon as they are available, copies of each annual report of the Company and each other report furnished by the Company to its securityholders and will deliver to the Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to its securityholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq Small Cap Market and (iii) from time to time such other information concerning the Company as the Representatives may reasonably request. So long as the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its securityholders generally. Separate financial statements shall be furnished for subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Act Rules and Regulations. (q) Prior to the Closing Dates, the Company will furnish to the Representatives, as soon as they have been prepared, copies, if any, of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus. (r) Prior to the Closing Dates, unless required under the Acts or the Rules and Regulations, the Company will issue no press release(s) or other communications directly or indirectly and hold no press conference(s) with respect to the Company or any of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Securities, without the prior written consent of the Representatives, which shall not be unreasonably withheld. (ks) ~~Whether or not~~ During the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated~~period of five years hereafter, the Company will ~~pay or cause to be paid all expenses incident~~ furnish to the ~~performance~~ Representatives, and upon request of the Representatives, to each of the Underwriters, (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent certified public accountants, (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, or the Nasdaq Small Cap Market or any national securities exchange, (iii) as soon as available, copies of any report or communication of the Company mailed generally to its ~~obligations under this Agreement~~securityholders and (iv) all public reports and financial statements furnished by the Company to the Commission pursuant to the Investment Company Act and the Investment Company Act Rules and Regulations thereunder. (t) So long as any of the Warrants shall remain outstanding, ~~including:~~ the Company shall cause the Warrants of the Company and the shares of Common Stock underlying the Warrants to maintain their listing on the Nasdaq Small Cap Market or Nasdaq National Market. (u) Within sixty (60) days of the later of (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specifiedFirm Closing Date or, (ii) ~~all costs and expenses related~~ the Option Closing Date, the Company shall deliver to counsel for the ~~transfer and delivery of~~ Underwriters two leather-bound volumes containing the ~~Securities to~~ documents delivered at Closing by the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, parties hereto. (v) When requested by Noble, but not more than weekly, the ~~fees and expenses~~ Company shall provide a list of the ~~Trustee and any agent~~ Company's shareholders as of the ~~Trustee~~ date Noble requests such lists, together with the Depository Trust Company (DTC) transfer sheets and the ~~fees~~ Non-Objecting Beneficial Ownership (NOBO) lists provided by ADP Proxy Services. (w) The Company agrees to invite Ben Lichtenberg (so long as he ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇oble) to all Company Board Meetings for a three (3) year period, such period commencing upon the later of (i) the Firm Closing Date or, (ii) the Option Closing Date. (x) The Company agrees that Noble shall act as Warrant solicitation agent, and ~~disbursements~~ shall be entitled to usual and customary compensation, including, but not limited to, a Warrant solicitation fee equal to five percent (5%) of ~~counsel~~ the exercise price of the warrants exercised. In addition, Noble agrees that they will not receive a fee for Warrant solicitation within one year of the ~~Trustee~~ later of the (i) Firm Closing Date, or (ii) the Option Closing Date, nor will they engage in ~~connection~~ a Warrant solicitation within that one year period with an agreement for payment at the ~~Indenture~~ expiration of such one year period. Noble's appointment as Warrant Solicitation Agent shall be subject to an agreement to be entered into by Noble and the ~~Securities, (vi) travel~~ Company containing such other terms and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except conditions as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeare customary therefor.

Appears in 2 contracts

Sources: Underwriting Agreement (Ameritrans Capital Corp), Underwriting Agreement (Ameritrans Capital Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Units by the Underwriters. (b) The Company will not make any offer relating to the Units that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act). The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ one signed copy of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company will use its best efforts promptly to prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus. (g) If the General Disclosure Package is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company will use its best efforts promptly ~~prepare and~~ to prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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 ~~Securities for sale~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company will use its best efforts to effect and maintain the listing of the Securities on the NASDAQ Capital Market. (k) The Company shall apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (l) The Company shall cause the proceeds of the offering to be held in the Trust Account to be invested only in U.S. “government securities” within the meaning of Section 2(a)(16) of the 1940 Act having a maturity of 180 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the 1940 Act as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise use its best efforts to conduct its business (both prior to and after the consummation of an initial Business Combination) in a manner so that it will not become subject to the Investment Company Act. (m) Except as disclosed in the Registration Statement, the Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (n) For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (o) For a period of five years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture, the Registration Statement,~~ Company’s Form 10-Q quarterly report. (p) The Company will not consummate a Business Combination with any ~~preliminary prospectus, the Prospectus,~~ entity that is affiliated with any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Shareholder or any of the ~~foregoing, including all printing costs associated therewith, and~~ Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of the ~~mailing and delivering of copies thereof~~ FINRA that such Business Combination is fair to the ~~Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ Company’s shareholders from a financial point of ~~the Securities to the Underwriters, including~~ view. The Company shall not pay any ~~transfer~~ Insider or ~~other taxes payable thereon, (iii) the cost~~ any of ~~printing certificates representing the Securities, (iv)~~ their affiliates or family members any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of or compensation from the Company for ~~any “road show” undertaken~~ services rendered to the Company prior to, or in connection ~~with~~ with, the ~~marketing~~ consummation of an initial Business Combination, other than payments pursuant to the ~~offering of~~ Services Agreement; provided that the ~~Securities, and one~~Insiders shall be entitled to reimbursement from the Company for their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (q) For a period of five years from the ~~listing~~ Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~Securities on~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the ~~New York Stock Exchange~~ Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (~~viii~~ii) ~~all other costs~~ such additional documents and ~~expenses incident~~ information with respect to the ~~performance~~ Company and the affairs of ~~the obligations~~ any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. (r) For a period equal to five years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for ~~which provision~~ the registration of the Warrants under the Act. (s) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Ordinary Shares and Warrants. (t) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is ~~not otherwise~~ engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide to FINRA, the Representative and their counsel complete details regarding any financial, investment, advisory, mergers & acquisition and/or business combination services provided or to be provided by the Underwriters or affiliates thereof to the Company, including a description of services, copies of agreements governing services, identification of the underwriter and related persons performing services, and disclosure of the services arrangements. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the tender offer documents or proxy statement which the Company will file in connection with the Business Combination (u) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (v) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. At or prior to the commencement of separate trading of the Warrants and Ordinary Shares, the Company shall promptly issue a press release and file a Current Report on Form 8-K announcing that separate trading of the Warrants and Ordinary Shares will begin. (w) The Company shall advise FINRA if it is ~~understood~~aware that any 5% or greater shareholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of a FINRA member participating in the distribution of the Securities. (x) The Company hereby agrees that until the Company consummates a Business Combination, ~~however~~it shall not issue any Ordinary Shares or any options or other securities convertible into Ordinary Shares, or any preferred shares of the Company which participate in any manner in the Trust Account or which vote as a class with the Ordinary Shares on a Business Combination. (y) The Company will seek to have all vendors, service providers, prospective target business or other entities with which it does business enter into an agreement waiving any right, title, interest or claim of any kind in or to any monies held in the Trust Account for the benefit of the holders (each, a “Public Shareholder”) of the Ordinary Shares sold as part of the Units in the Offering (the “Public Shares”). (z) The Company shall not take any action or omit to take any action that ~~except~~ would cause the Company to be in breach or violation of its memorandum and articles of association. (aa) If the Company elects to seek shareholder approval of a Business Combination as ~~provided~~ described in ~~this Section~~Section (cc), ~~Section 6 entitled~~ prior to the consummation of a Business Combination, the Company may instruct the trustee under the Trust Agreement that amounts necessary to purchase up to 15% of the Ordinary Shares sold as part of the Units in the Offering (the “~~Indemnity and Contribution,~~Public Shares” and the ~~last paragraph~~ holder of ~~Section 8 below~~such shares, a “Public Shareholder”) (1,050,000 shares, or 1,207,500 shares if the ~~Underwriters will pay all~~ Underwriters’ over-allotment option is exercised in full) at any time commencing after the filing of ~~their costs~~ a preliminary proxy statement for an initial Business Combination and ~~expenses~~ending on the record date for the vote to be held to approve such initial Business Combination (such purchases being referred to herein as “Open Market Purchases”) be released to the Company from the Trust Account. Such Open Market Purchases (i) may be made only in open market transactions at times when the Company is not in possession of material non-public information, ~~including fees~~ (ii) may not be made during a restricted period under Regulation M under the Exchange Act and ~~disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.~~(iii) are intended

Appears in 2 contracts

Sources: Underwriting Agreement (Blue Wolf Mongolia Holdings Corp.), Underwriting Agreement (Blue Wolf Mongolia Holdings Corp.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (a) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a ~~reasonable opportunity~~ copy or to ~~comment~~ which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Notes and (c) file on a timely basis all reports and any ~~such proposed amendment~~ definitive proxy or ~~supplement~~information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Notes by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, the Company ~~shall~~ will not file any such ~~proposed~~ report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object; and~~ objected in writing or which is not in compliance with the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedExchange Act. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (a) not make any offer relating to the ~~Securities~~ Notes that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (c) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (d) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (diii) The Company will prepare a final term sheet ~~relating to~~ (the ~~Securities, containing only information that describes~~ “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives and as described on Schedule III, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (iv) The Company will advise the Representatives promptly (a) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Notes, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Notes for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or such suspension of qualification. (v) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Notes within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act. (vi) If at any time when Notes remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form ~~consented~~ satisfactory to the Representatives, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will ~~file~~ use its best efforts to cause such ~~final term sheet~~ registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (viii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required ~~by Rule 433(d)(5)(ii~~under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish upon request to the Representatives signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith. (ix) of The Company will comply with the Securities Act and the Rules and Regulations ~~following~~ and the ~~date such final terms have been established for all classes~~ Exchange Act, and the rules and regulations of the ~~offering~~ Commission thereunder, so as to permit the completion of the ~~Securities~~distribution of the Notes as contemplated in this Agreement and the Prospectus. ~~Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Subject to the ~~use by any Underwriter~~ provisions of Section 4(i) above, if during the period in which a ~~free writing~~ prospectus ~~that contains only~~ (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing the preliminary terms of~~ under the Securities Act) is required by law to be delivered by an Underwriter or ~~their offering or (y) information that describes the final terms~~ a dealer any event shall occur as a result of ~~the Securities or their offering and that is included~~ which, in the ~~final term sheet~~ judgment of the Company ~~contemplated in the first sentence of this subsection~~ or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the ~~Underwriters is (~~Underwriters, it becomes necessary to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (x) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (b) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fxi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of ~~at least 12~~ twelve consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gxii) The Company will, for a period of five years from the Closing Date, furnish upon request to the Representatives, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year and the Company will furnish upon request to the Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders. (xiii) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplementnot, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities beginning on ~~the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from~~ the date hereof and continuing to and including the ~~date 30 days after~~ business day following the ~~date of the Prospectus~~Closing Date, ~~not to~~ offer, sell, contract to ~~sell, pledge, grant any option to purchase, make any short sale~~ sell or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any debt securities of or guaranteed by the Company ~~that~~ which are substantially similar to the ~~Securities,~~ Notes without the Representatives’ prior written ~~consent of the Representatives~~consent. (kxiv) ~~Whether or not~~ The Company will use the ~~transactions contemplated in~~ net proceeds from the sale of the Notes pursuant to this Agreement ~~are consummated or this Agreement is terminated,~~ in the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities manner specified under the ~~Securities Act and all other fees or expenses~~ heading “Use of Proceeds” in ~~connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus,~~ the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Underwriting Agreement (Health Care Reit Inc /De/), Underwriting Agreement (Health Care Reit Inc /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Units by the Underwriters. (b) The Company will not make any offer relating to the Units that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act). The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ one signed copy of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company will use its best efforts promptly to prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus. (g) If the General Disclosure Package is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company will use its best efforts promptly ~~prepare and~~ to prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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 ~~Securities for sale~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company will use its best efforts to effect and maintain the listing of the Securities on the NASDAQ Capital Market. (k) The Company shall apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (l) The Company shall cause the proceeds of the offering to be held in the Trust Account to be invested only in U.S. “government securities” within the meaning of Section 2(a)(16) of the 1940 Act having a maturity of 180 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the 1940 Act as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise use its best efforts to conduct its business (both prior to and after the consummation of an initial Business Combination) in a manner so that it will not become subject to the Investment Company Act. (m) Except as disclosed in the Registration Statement, the Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (n) For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (o) For a period of five years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture, the Registration Statement,~~ Company’s Form 10-Q quarterly report. (p) The Company will not consummate a Business Combination with any ~~preliminary prospectus, the Prospectus,~~ entity that is affiliated with any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Stockholder or any of the ~~foregoing, including all printing costs associated therewith, and~~ Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of the ~~mailing and delivering of copies thereof~~ FINRA that such Business Combination is fair to the ~~Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ Company’s stockholders from a financial point of ~~the Securities to the Underwriters, including~~ view. The Company shall not pay any ~~transfer~~ Insider or ~~other taxes payable thereon, (iii) the cost~~ any of ~~printing certificates representing the Securities, (iv)~~ their affiliates or family members any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of or compensation from the Company for ~~any “road show” undertaken~~ services rendered to the Company prior to, or in connection ~~with~~ with, the ~~marketing~~ consummation of an initial Business Combination, other than payments pursuant to the ~~offering of~~ Services Agreement; provided that the ~~Securities, and one~~Insiders shall be entitled to reimbursement from the Company for their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (q) For a period of five years from the ~~listing~~ Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~Securities on~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the ~~New York Stock Exchange~~ Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (~~viii~~ii) ~~all other costs~~ such additional documents and ~~expenses incident~~ information with respect to the ~~performance~~ Company and the affairs of ~~the obligations~~ any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. (r) For a period equal to five years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for ~~which provision~~ the registration of the Warrants under the Act. (s) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants. (t) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is ~~not otherwise~~ engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide to FINRA, the Representative and their counsel complete details regarding any financial, investment, advisory, mergers & acquisition and/or business combination services provided or to be provided by the Underwriters or affiliates thereof to the Company, including a description of services, copies of agreements governing services, identification of the underwriter and related persons performing services, and disclosure of the services arrangements. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the tender offer documents or proxy statement which the Company will file in connection with the Business Combination (u) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (v) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. At or prior to the commencement of separate trading of the Warrants and Common Stock, the Company shall promptly issue a press release and file a Current Report on Form 8-K announcing that separate trading of the Warrants and Common Stock will begin. (w) The Company shall advise FINRA if it is ~~understood~~aware that any 5% or greater stockholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of a FINRA member participating in the distribution of the Securities. (x) The Company hereby agrees that until the Company consummates a Business Combination, ~~however~~it shall not issue any Common Stock or any options or other securities convertible into Common Stock, or any preferred shares of the Company which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination. (y) The Company will seek to have all vendors, service providers, prospective target business or other entities with which it does business enter into an agreement waiving any right, title, interest or claim of any kind in or to any monies held in the Trust Account for the benefit of the holders (each, a “Public Stockholder”) of the Common Stock sold as part of the Units in the Offering (the “Public Shares”). (z) The Company shall not take any action or omit to take any action that ~~except~~ would cause the Company to be in breach or violation of its certificate of incorporation and bylaws. (aa) If the Company elects to seek stockholder approval of a Business Combination as ~~provided~~ described in ~~this Section~~Section (dd), ~~Section 6 entitled~~ prior to the consummation of a Business Combination, the Company may instruct the trustee under the Trust Agreement that amounts necessary to purchase up to 15% of the Common Stock sold as part of the Units in the Offering (the “~~Indemnity and Contribution,~~Public Shares” and the ~~last paragraph~~ holder of ~~Section 8 below~~such shares, a “Public Stockholder”) (1,125,000 shares, or 1,293,750 shares if the ~~Underwriters will pay all~~ Underwriters’ over-allotment option is exercised in full) at any time commencing two business days after the filing of ~~their costs~~ a preliminary proxy statement for an initial Business Combination and ~~expenses~~ending on the business day immediately preceding the record date for the vote to be held to approve such initial Business Combination (such purchases being referred to herein as “Open Market Purchases”) be released to the Company from the Trust Account. Such Open Market Purchases (i) shall be made only in open market transactions at times when the Company is not in possession of material non-public information, ~~including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.~~(ii) shall not be made during a restricted period under Regulation M under t

Appears in 2 contracts

Sources: Underwriting Agreement (ROI Acquisition Corp.), Underwriting Agreement (ROI Acquisition Corp.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act; and (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided, that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto; (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus; (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping; and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. Each Underwriter represents and agrees that it has not made and, without the prior consent of the Company and the Representative, it will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus other than the Issuer Free Writing Prospectus set forth on Schedule IV. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective; (ii) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission; (iii) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package ~~and will afford~~ or the ~~Representatives a reasonable opportunity to comment on~~ Prospectus or for any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object~~additional information; and ~~the Company will also advise the Representatives promptly~~ (iv) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided, 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 jurisdiction where it is not now so qualified or required to file such a consent or to subject itself to taxation in any jurisdiction in which it would not otherwise be 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 ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representative may reasonably request for distribution of the ~~Securities and otherwise in a form consented~~ Shares. (e) The Company will deliver to, or upon the order of, the Representative, from time to by time, as many copies of any Preliminary Prospectus as the ~~Representatives~~Representative may reasonably request. The Company will deliver to, ~~and will file such final term sheet within~~ or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Representative, from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representative may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing~~ Representative at or before the ~~preliminary terms~~ Closing Date, four signed copies of the ~~Securities or their offering or (y) information that describes~~ Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~final terms~~ Representative such number of copies of the ~~Securities or their offering and that is included in the final term sheet~~ Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representative may reasonably request. (f) The Company ~~contemplated in~~ will comply with the ~~first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange~~ timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the ~~qualification~~ purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectAct. (i) ~~The Company will use its commercially reasonable efforts~~ Prior to ~~effect the listing of the Securities on the New York Stock Exchange within 30 days of~~ the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (j) ~~During~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 180 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Representative, except (i) the Company’s sale of the Shares as contemplated hereunder, (ii) issuances of shares of Common Stock upon conversion of existing convertible securities and exercise by employees of existing stock options and warrants disclosed as outstanding in the Disclosure Package, and (iii) the grant by the Company pursuant to the Company’s 1993 Stock Plan of stock options and shares of restricted stock that are not exercisable or vested, as the case may be, during the Lock-Up Period. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representative waives, in writing, such extension. (k) ~~Whether or not~~ The Company will use its best efforts, subject to official notice of issuance, to effect and maintain the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ listing of the Shares on the Nasdaq Capital Market. (l) The Company has caused each director and executive officer of the Company ~~will pay~~ and each Selling Stockholder to furnish to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of ~~its obligations under~~ this Agreement, ~~including:~~ an executed Lock-Up Agreement. (im) The Company shall apply the ~~fees, disbursements and expenses~~ net proceeds of its sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ General Disclosure Package and the Prospectus. (n) The Company shall not invest, ~~any Issuer Free Writing Prospectus and amendments and supplements to~~ or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Stock. (p) 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 2 contracts

Sources: Underwriting Agreement (Sharps Compliance Corp), Underwriting Agreement (Sharps Compliance Corp)

Covenants of the Company. ~~In further consideration of the~~ The Company, in addition to its other agreements ~~of the Underwriters herein contained~~and obligations hereunder, ~~the Company~~ covenants with each Underwriter as follows: (a) ~~The Company has filed or will~~ To file ~~each Statutory~~ the Prospectus ~~(including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ within the time periods specified by Rule 424(b) ~~not later than~~ and Rule 430A under the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and RegulationsSecurities Act. (b) ~~The Company will advise~~ To furnish to the ~~Representatives promptly~~ Representative, without charge, six signed copies of the Registration Statement and the ADS Registration Statement (including, in each case, exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement and the ADS Registration Statement (in each case, without exhibits thereto) and to furnish to the Representative in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Sections 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any ~~proposal~~ supplements and amendments thereto or to ~~amend~~ the Registration Statement as the Representative may reasonably request. (c) Before amending or ~~supplement~~ supplementing the Registration Statement, the ADS Registration Statement, the Time of Sale Prospectus or the ~~General Disclosure Package and will afford~~ Prospectus, to furnish to the ~~Representatives~~ Representative a ~~reasonable opportunity to comment on any~~ copy of each such proposed amendment or ~~supplement; provided, however, that the Company shall~~ supplement and not to file any such proposed amendment or supplement to which the ~~Representatives~~ Representative reasonably ~~object;~~ objects, and ~~the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by~~ to file with the Commission ~~of any stop order proceedings~~ within the applicable period specified in ~~respect of the Registration Statement or of any part thereof 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. (c~~Rule 424(b) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to under the Securities ~~that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations,~~ Act any prospectus required to be filed ~~with~~ pursuant to such Rule. (d) To furnish to the ~~Commission. Any such~~ Representative a copy of each proposed free writing prospectus ~~consented~~ to be prepared by or on behalf of, used by, or referred to by the Company and ~~the Representatives is hereinafter referred~~ not to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable use or refer to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a proposed free writing prospectus ~~that contains only (i)(x) information describing~~ to which the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementRepresentative reasonably objects. (e) IfWithout the prior written consent of the Representative, at not to take any ~~time when a prospectus relating to~~ action that would result in an Underwriter or the ~~Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be)~~ Company being required to ~~be delivered~~ file with the Commission pursuant to Rule 433(d) under the Securities Act ~~in connection with sales~~ a free writing prospectus prepared by ~~any~~ or on behalf of the Underwriter ~~or dealer,~~ that the Underwriter otherwise would not have been required to file thereunder. (f) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event ~~occurs~~ shall occur or condition exist as a result of which it is necessary to amend or supplement the ~~General Disclosure Package or the~~ Time of Sale 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~~circumstances, not misleading, or if ~~for~~ any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary ~~at any time~~ to amend or supplement the ~~General Disclosure Package or the~~ Time of Sale Prospectus to comply with ~~the Securities Act~~applicable law, ~~the Company will promptly prepare and~~ forthwith to prepare, file with the ~~Commission~~Commission and furnish, at its own expense, ~~an amendment~~ to the Underwriters and to any dealer upon request, either amendments or ~~supplement which~~ supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (fg) As If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) to which Shares may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (h) To endeavor to qualify the Shares and the American Depositary Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request. (i) To use its best efforts to list, subject to notice of issuance, the American Depositary Shares on the NASDAQ Global Market. (j) To advise the Representative promptly and confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, the ADS Registration Statement, the Form 8-A Registration Statement, any Time of Sale Prospectus, Prospectus or free writing prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or the ADS Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as ~~practicable, but not later than 16 months, after the date of this Agreement, the Company will~~ possible. (k) To make generally available to ~~its securityholders~~ the Company’s security holders and to the Representative as soon as practicable an earning statement covering a period of at least 12 twelve months beginning with the first fiscal quarter of the Company occurring after the date of this ~~Agreement and satisfying~~ Agreement, which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, but not limited to, Rule 158 of under the ~~Rules and Regulations~~Securities Act). (gl) ~~The Company will furnish~~ During the period when the Prospectus is required to be delivered under the Securities Act, to file all documents required to be filed with the Commission pursuant to the ~~Representatives copies~~ Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Commission thereunder; during the ~~Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding~~ five-year period after the date of this ~~Agreement or~~ Agreement, to furnish to the Representative and, upon request, to each of the other Underwriters, as soon as ~~possible~~practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and to furnish to the Representative (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with ~~respect~~ or furnished to ~~any amendment~~ the Commission under the Exchange Act or ~~supplement~~mailed to shareholders, ~~during~~ and (ii) from time to time, such other information concerning the ~~period mentioned in Section 4(e) above and in such quantities~~ Company as the ~~Representatives~~ Representative may reasonably request. ~~The~~ However, so long as the Company ~~will pay the expenses of printing and distributing~~ is subject to the ~~Underwriters all~~ reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its ▇▇▇▇▇ reporting system, it is not required to furnish such ~~documents~~reports or statements filed through ▇▇▇▇▇ to the Underwriters. (hm) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the SecuritiesCompany, without the prior written consent of the ~~Representatives.~~ Representative on behalf of the Underwriters, will not, during the period ending 180 days after the date of the Prospectus (kthe “Restricted Period”), (i) ~~Whether~~ offer, pledge, sell, contract to sell, sell any option or ~~not~~ contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares, American Depositary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or American Depositary Shares or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the ~~transactions contemplated~~ economic consequences of ownership of the Ordinary Shares or American Depositary Shares, whether any such transaction described in ~~this Agreement are consummated~~ clause (i) or ~~this Agreement~~ (ii) above is ~~terminated, the Company will pay or cause~~ to be ~~paid all expenses incident~~ settled by delivery of Ordinary Shares, American Depositary Shares or such other securities, in cash or otherwise or (iii) file any registration statement with the Commission relating to the ~~performance~~ offering of ~~its obligations under this Agreement~~any Ordinary Shares, ~~including:~~ American Depositary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or American Depositary Shares. The restrictions contained in the preceding paragraph shall not apply to (i) the ~~fees~~Shares to be sold hereunder, ~~disbursements~~ (ii) the issuance by the Company of Ordinary Shares upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing and ~~expenses~~ grants of employee share awards pursuant to the Company’s ~~counsel~~ share incentive plans of which the Underwriters have been advised in writing and the ~~Company’s accountants~~ issuance of Ordinary Shares pursuant to the exercise of such share awards, or (iii) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Securities, provided that (A) such plan does not provide for the transfer of Securities during the Restricted Period and (B) no public announcement shall be made regarding the establishment of such plan. (n) To apply the net proceeds to the Company from the sale of the Shares in ~~connection~~ the manner set forth under the heading “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus and to file such reports with the ~~registration and delivery~~ Commission with respect to the sale of the ~~Securities~~ Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Securities ~~Act and all other fees~~ Act; not to invest, or ~~expenses in connection with~~ otherwise use the ~~preparation and filing~~ proceeds received by the Company from its sale of the ~~Indenture,~~ American Depositary Shares in such a manner (i) as would require the ~~Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to~~ Company or any of the ~~foregoing~~Subsidiaries and Affiliated Entities to register as an investment company under the 1940 Act, and (ii) that would result in the Company being not in compliance with any applicable laws, rules and regulations of the State Administration of Foreign Exchange of the PRC. (o) Not to, and to cause each of its Subsidiaries and Affiliated Entities not to, take, directly or indirectly, any action designed to or that would constitute or that 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 or the American Depositary Shares. (p) (i) The Company will indemnify and hold harmless the Underwriters against any stamp, issuance, registration, documentary, transaction, transfer, withholding, income or other similar taxes or duties, including ~~all printing costs associated therewith~~any interest and penalties, on the creation, allotment, issue and sale of the ~~mailing and delivering of copies thereof~~ Shares or American Depositary Shares to the Underwriters and ~~dealers, in~~ on the ~~quantities hereinabove specified, (ii) all costs and expenses related to the transfer~~ execution and delivery ~~of the Securities to the Underwriters~~of, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) all other costs and expenses incident to the performance of the obligations under this Agreement or the Deposit Agreement and enforcement of this Agreement; (ii) all payments made by the Company hereunder shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made provided, that such additional amount shall not be paid to an Underwriter on account of (including any combination of) (A) taxes which would not have been imposed but for the Underwriter having been a resident of the jurisdiction imposing such taxes or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein, or (B) any taxes imposed or withheld as a result of the failure by such Underwriter to comply with a reasonable request of the Company that such Underwriter provide certification, information, documents or other evidence concerning the nationality, residence or identity of the Underwriter, which is required by a statute, treaty, regulation or administrative practice of the jurisdiction imposing such taxes as a precondition to exemption from all or part of such taxes, provided that the information is readily available to the Underwriter (or could be available using reasonable efforts); (iii) all payments by the Company to the Underwriters hereunder ~~for which provision~~ shall be considered exclusive of any value added or similar taxes. Where the Company is ~~not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ obliged to pay value added or similar tax on any amount payable hereunder to the ~~last paragraph of Section 8 below~~Underwriters, the ~~Underwriters~~ Company shall pay such additional amounts equal to any applicable value added or similar tax. (q) To comply with the terms of the Deposit Agreement so that the American Depositary Shares will be issued by the Depositary and delivered to each Underwriter’s participant account in DTC, pursuant to this Agreement on the Closing Date and each applicable Option Closing Date. (r) (i) it will not attempt to avoid any judgment in connection with this Agreement obtained by it, applied to it, or denied to it in a court of competent jurisdiction outside the Cayman Islands; (ii) following the consummation of the offering, to use its reasonable efforts to obtain and maintain all approvals required in the Cayman Islands to pay and remit outside the Cayman Islands all ~~of their costs~~ dividends declared by the Company and ~~expenses, including fees and disbursements of their counsel, transfer taxes~~ payable on ~~resale~~ the Ordinary Shares, if any; and (iii) to use its reasonable efforts to obtain and maintain all approvals, if any, required in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends and all other relevant purposes. (s) To comply with the PRC Overseas Investment and Listing Regulations, and to use its reasonable efforts to cause holders of its ordinary shares that are, or that are directly or indirectly owned or controlled by, Chinese residents or Chinese citizens, to comply with the PRC Overseas Investment and Listing Regulations applicable to them, including, without limitation, requesting each such shareholder to complete any registration and other procedures required under applicable PRC Overseas Investment and Listing Regulations (including any applicable rules and regulations of the SAFE). (t) To implement and maintain reasonable measures in compliance with PRC laws and regulations concerning copyrights, information dissemination over the Internet, user privacy protection and advertising. (u) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities ~~by them~~ Act and (b) completion of the Restricted Period. (v) If at any ~~advertising expenses connected with~~ time following the distribution of any ~~offers they may make~~Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (w) To not release the Depositary from the obligations set forth in, or otherwise amend, terminate, fail to enforce or pro

Appears in 2 contracts

Sources: Underwriting Agreement (iClick Interactive Asia Group LTD), Underwriting Agreement (iClick Interactive Asia Group LTD)

Appears in 2 contracts

Sources: Underwriting Agreement (Lamar Advertising Co/New), Underwriting Agreement (Lamar Advertising Co/New)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained~~As long as any Holder shall own Registrable Securities, the Company hereby covenants ~~with each Underwriter as follows~~and agrees: (a) ~~The~~ the Company ~~has filed~~ will not file any Registration Statement or ~~will file each Statutory~~ Prospectus ~~(including the Prospectus)~~ included therein with the Commission ~~pursuant~~ which refers to ~~and in accordance with Rule 424(b)~~ any Holder of Registrable Securities by name or otherwise without the prior written approval of such Holder, which may not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations.be unreasonably withheld, conditioned or delayed; (b) at all times while it shall be a reporting company under the Exchange Act, to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the closing of the Transactions pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings. The Company ~~will advise~~ further covenants that it shall take such further action as any Holder may reasonably request, all to the ~~Representatives promptly~~ extent required from time to time to enable such Holder to sell Registerable Securities held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any ~~proposal to amend or supplement the Registration Statement~~Holder, ~~the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that~~ the Company shall ~~not file any~~ deliver to such ~~proposed amendment or supplement~~ Holder a written certification of a duly authorized officer as to ~~which the Representatives reasonably object~~whether it has complied with such requirements; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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.and (c) ~~The Company represents and agrees that, unless it obtains~~ promptly following the ~~prior consent~~ effectiveness of the ~~Representatives~~shelf Registration Statement required by Section 2.1(a), ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ the Company shall cause the transfer agent to remove any restrictive legends (including any electronic transfer restrictions) from any Shares, Class C-1 Shares, Class C-2 Shares, ListCo Warrants, Class A ADSs, Converted Class C-1 ADSs, Class C-2 ADSs or ListCo AD Warrants held by such Holder and ~~the Representatives, it has not made and will not make~~ provide or cause any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion customary opinions of counsel ~~for the Underwriters is (or but for the exemption in Rule 172 would be) required~~ to be delivered ~~under~~ to the ~~Securities Act~~ transfer agent in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereofremoval. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Business Combination Agreement (Gores Guggenheim, Inc.), Registration Rights Agreement (Gores Guggenheim, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company hereby covenants with ~~each Underwriter~~ the Financial Advisor as follows: (a) The Company ~~has filed~~ will not, at any time after the date the Registration Statement is declared effective, file any amendment or ~~will file each Statutory Prospectus~~ supplement to the Registration Statement (including ~~the~~ any Issuer-Represented Free Writing Prospectus, Issuer-Represented General Free Writing Prospectus or Issuer- Represented Limited-Use Free Writing Prospectus) ~~with~~ without providing the ~~Commission pursuant to~~ Financial Advisor and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable its counsel an opportunity to review and comment on ~~any~~ such ~~proposed~~ amendment or ~~supplement; provided, however, that the Company shall not~~ file any ~~such proposed~~ amendment or supplement to which amendment the ~~Representatives~~ Financial Advisor or its counsel shall reasonably object; . The Company will furnish promptly to the Financial Advisor and its counsel copies of all correspondence from the Commission with respect to the Registration Statement, including the documents incorporated therein, and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedCompany’s responses thereto. (cb) The Company represents and agrees that, unless it obtains the prior consent of the ~~Representatives~~Financial Advisor, and ~~each Underwriter~~ the Financial Advisor represents and agrees that, unless it obtains the prior consent of the ~~Company and the Representatives~~Company, it has not made and will not make any offer relating to the ~~Securities~~ offered Shares that would constitute an ~~Issuer Free Writing Prospectus~~“issuer free writing prospectus,” as defined in Rule 433, or that would ~~otherwise~~ constitute a “free writing prospectus,” as defined in Rule ~~405 of the Rules and Regulations~~405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and ~~the Representatives~~ Financial Advisor is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has ~~treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has~~ complied and will comply with the requirements of ~~Rules 164 and~~ Rule 433 ~~of the Rules and Regulations~~ applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company need not treat any communication as a free writing prospectus if it is exempt from the definition of prospectus pursuant to Clause (a) of Section 2(a)(10) of the Securities Act without regard to Rule 172 or 173 of the Securities Act Regulations. (c) The Company, subject to Section 7(a), will comply with the requirements of Rule 430A of the Securities Act Regulations and will notify the Financial Advisor immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Securities. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. 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 lifting thereof at the earliest possible moment. (d) The Company will ~~prepare a final term sheet relating~~ comply with terms, conditions, requirements and provisions with respect to any agreement entered into by the Company and the Standby Purchasers, subject to the ~~Securities~~waiver of any provision as provided in the Standby Purchase Agreements. (e) The Company will refrain during a period of 180 days after the consummation of all sales of Common Stock in the Stock Offering (such 180 day period being referred to herein as the “Lock-Up Period”), ~~containing only information that describes~~ without the ~~final terms~~ prior written consent of the Financial Advisor, 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 ~~and otherwise in a form consented~~ Act with respect to ~~by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii)~~ any of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection foregoing or (ii) entering into any swap or any other ~~information~~ agreement or transaction that ~~is not “issuer information,” as defined~~ transfers, in ~~Rule 433~~ whole or in part, directly or indirectly, the economic consequence of ownership of the ~~Rules and Regulations~~Common Stock or any security convertible into or exchangeable for Common Stock, ~~it being understood that~~ whether any such ~~free writing prospectus referred to~~ 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 the Standby Purchasers who are to become directors of the Company, and the current executive officers and directors of the Company, to furnish to the Financial Advisor, on or prior to the date hereof, a letter or letters, in form and substance satisfactory to counsel for the Financial Advisor, pursuant to which each such person or entity shall agree to abide by the aforementioned restrictions, unless they have received prior written consent from the Financial Advisor, for a period of 180 days from the date of the Prospectus. The foregoing sentence shall not apply to (x) any shares of Common Stock issued by the Company upon the exercise of Warrants; (y) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; or (z) 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. Notwithstanding the foregoing, if (i) 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 (ii) 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 each case the Lock-Up Period will be ~~an Issuer Free Writing Prospectus for purposes~~ automatically extended until the expiration of ~~this Agreement~~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 the Financial Advisor waives, in writing, such extension. (ef) IfThe Company will distribute the Prospectus or other offering materials (including any Permitted Free Writing Prospectus) in connection with the offering and sale of the Common Stock only in accordance with the Securities Act and the Securities Act Regulations, at and the laws of any state in which the shares are qualified for sale. (g) During the time when a prospectus ~~relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company ~~promptly will notify the Representatives of such event, and if such event~~ shall ~~occur or if~~at all times comply, in all material respects, with all applicable provisions of the ~~opinion of counsel for~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, including the ~~Underwriters~~related rules and regulations promulgated thereunder by the Commission and the Nasdaq Capital Market, ~~it is necessary at any~~ in effect from time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentstime. (h) The Company will ~~arrange for~~ timely file an “Additional Listing Application” with the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that Nasdaq Capital Market in connection ~~therewith~~ with the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) Securities. The Company will use its ~~commercially reasonable~~ best efforts to obtain, effect and maintain the listing of the Securities on the ~~New York~~ Nasdaq Capital Market and will file with the Nasdaq Capital Market all documents and notices required by the Nasdaq Capital Market of companies that have securities that are listed on the Nasdaq Capital Market. (i) For so long as the Common Stock is registered under the Exchange ~~within 30 days~~ Act, the Company will furnish to its stockholders after the end of each fiscal year, in the time periods prescribed by applicable law and regulations, such reports and other information as are required to be furnished to its stockholders under the Exchange Act (including consolidated financial statements of the ~~Closing Date~~Company and its subsidiaries (including the Bank), certified by independent public accountants). (j) ~~During~~ The Company and the ~~period beginning from the date hereof~~ Bank will conduct their businesses in compliance in all material respects with all applicable federal and ~~continuing to~~ state laws, rules, regulations, decisions, directives and ~~including the date 30 days after the date~~ orders including, all decisions, directives and orders of the ~~Prospectus~~Commission, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose~~the FDIC and the OTS, except ~~as provided hereunder of~~that the Bank will be unable to comply with the individual minimum capital requirements set forth in a Cease and Desist Order that the Bank entered into with the OTS on May 25, ~~any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~2011. (k) ~~Whether or not~~ The Company and the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated~~Bank shall comply with any and all terms, conditions, requirements and provisions imposed by the FDIC, the ~~Company will pay or cause to be paid all expenses incident to~~ OCC, the ~~performance of its obligations under this Agreement~~FRB, ~~including: (i)~~ the ~~fees~~Commission, ~~disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of~~ the Securities ~~under~~ Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations. The Company will comply with all ~~other fees or expenses~~ provisions of all undertakings contained in ~~connection with the preparation and filing of the Indenture,~~ the Registration Statement, . (l) The Company will promptly advise the Financial Advisor upon receipt of any ~~preliminary prospectus~~material correspondence by it or any subsidiary (including the Bank) or the commencement of any enforcement action against it or any subsidiary (including the Bank) (formal or otherwise) from or by the FDIC, the ~~Prospectus~~OCC, the FRB, or any ~~Issuer Free Writing Prospectus and amendments and supplements~~ other regulator. (m) The Company shall provide the Financial Advisor with any other information necessary to ~~any~~ allow the Financial Advisor to manage the allocation process in order to permit the Company to carry out the allocation of the ~~foregoing, including all printing costs associated therewith~~Common Stock in the event of an over-subscription, and all such information shall be accurate and reliable in all material respects. (n) The Company will not deliver the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of Common Stock until the Company ~~for any “road show” undertaken~~ has satisfied or caused to be satisfied each condition set forth in ~~connection with~~ Section 9 hereof, unless such condition is waived in writing by the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinancial Advisor.

Appears in 2 contracts

Sources: Financial Advisory Services Agreement (Central Federal Corp), Financial Advisory Services Agreement (Central Federal Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, and (ii) not file any amendment to the Registration Statement or any documents incorporated by reference therein or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Act and (ii) completion of the 180-day restricted period referred to in Section 4(k) hereof. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any comments from the Commission, (iii) when any supplement to the ~~Securities~~Prospectus, ~~containing only information that describes~~ any Issuer Free Writing Prospectus, or any amendment to the ~~final terms~~ Prospectus has been filed, (iv) of any request of the ~~Securities and otherwise in a form consented~~ Commission for amendment of the Registration Statement or for supplement to by the ~~Representatives~~General Disclosure Package or the Prospectus or for any additional information, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(v) of the ~~Rules and Regulations following~~ issuance by the ~~date such final terms have been established for all classes~~ Commission of any stop order suspending the effectiveness of the ~~offering~~ Registration Statement or any order preventing or suspending the use of ~~the Securities. Any such final term sheet is an~~ any Preliminary Prospectus, any Issuer Free Writing ~~Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to~~ Prospectus, or the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ Prospectus, or of the ~~Securities~~ institution of any proceedings for that purpose or ~~their offering or (y) information that describes the final terms~~ pursuant to Section 8A of the ~~Securities or their offering and that is included in the final term sheet~~ Act, (vi) of the ~~Company contemplated in the first sentence~~ occurrence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event ~~occurs~~ or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order, suspension or qualification referred to in clause (v) or (vii) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement~~ not, in the light of the circumstances, be misleading or ~~omission~~ conflict with the Registration Statement then on file, or ~~an amendment which~~ so that the General Disclosure Package will ~~effect such compliance~~comply with law. ~~Neither~~ If any Testing-the-Waters Presentation is being used to solicit indications of interest in the ~~Representatives consent to~~Shares or the Company more generally and any event or development shall occur or condition shall exist as a result of which, ~~nor~~ in the judgment of the Company or in the opinion of the Underwriters~~’ delivery of~~, ~~any~~ it becomes necessary to amend, supplement or otherwise supersede such ~~amendment or supplement shall constitute a waiver of any~~ Testing-the-Waters Presentation in order to make the statements therein, in the light of the ~~conditions set forth~~ circumstances, not misleading, or to make the statements therein not conflict with the information contained in ~~Section 5 hereof. (f) As soon as practicable~~the Registration Statement then on file, ~~but not later than 16 months~~or if it is necessary at any time to amend, ~~after the date of this Agreement~~supplement or supersede any Testing-the-Waters Presentation to comply with any law, the Company promptly will ~~make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement~~ prepare and ~~satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will~~ furnish to the ~~Representatives copies~~ Underwriters an appropriate amendment, supplement or replacement to such Testing-the-Waters Presentation so that such Testing-the-Waters Presentation, as so amended, supplemented or superseded, will not, in the light of the circumstances, be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to~~ or so that such ~~documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible,~~ Testing-the-Waters Presentation will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectlaw. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities on~~ 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 ~~New York Stock Exchange within 30 days~~ effective date of the ~~Closing Date~~Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (j) ~~During~~ Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning from~~ covered by the ~~date hereof~~ most recent financial statements appearing in the Registration Statement, the General Disclosure Package and ~~continuing to and including the date 30 days after the date of~~ the Prospectus. (k) No offering, ~~not to offer~~pledge, ~~sell~~sale, contract to sell, ~~pledge, grant any option to purchase, make any~~ short sale or ~~otherwise dispose, except as provided hereunder of,~~ other disposition of any ~~securities~~ shares of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer Common Stock or other ~~taxes payable thereon,~~ securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (~~iii~~or agreement for such) ~~the cost~~ will be made for a period of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.180 days after the

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Syndax Pharmaceuticals Inc), Equity Underwriting Agreement (Syndax Pharmaceuticals Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with you, and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ If the Company does not elect to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offerings, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as may copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus) , in such number as you shall reasonably request, and promptly file or transmit for filing with the Commission ~~pursuant to and~~ the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ 1933 Act Regulations. (b) The Company will ~~advise~~ notify you immediately, and confirm such notice in writing, of (i) the ~~Representatives promptly~~ effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~General Disclosure Package and will afford~~ 1934 Act, (iii) the ~~Representatives a reasonable opportunity~~ receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to ~~comment on~~ the Registration Statement or any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (c) ~~The Company represents and agrees that, unless it obtains~~ At any time when the ~~prior consent~~ Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the ~~Representatives~~Underwritten Securities, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ the Company ~~and the Representatives, it has not made and~~ will ~~not make~~ give you notice of its intention to file or prepare any ~~offer relating~~ amendment to the ~~Securities that would constitute an Issuer Free Writing~~ Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or ~~that would~~ otherwise ~~constitute a “free writing prospectus,” as defined~~ (including any revised prospectus which the Company proposes for use by the Underwriters in ~~Rule 405~~ connection with an offering of Underwritten Securities which differs from the ~~Rules and Regulations~~Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed ~~with the Commission. Any such free writing prospectus consented~~ pursuant to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule ~~433~~ 424(b) of the ~~Rules and~~ 1933 Act Regulations, ~~and has complied~~ or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will ~~comply~~ furnish you with copies of any such amendment or supplement or other documents proposed to be filed or used a reasonable amount of time prior to such proposed filing or use, as the ~~requirements of Rules 164~~ case may be, and ~~433 of~~ will not file any such amendment or supplement or other documents in a form to which you or counsel for the ~~Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~Underwriters shall reasonably object. (d) The Company will ~~prepare a final term sheet relating~~ deliver to ~~the Securities, containing only information that describes the final terms~~ each Underwriter as many signed and conformed copies of the ~~Securities~~ Registration Statement as originally filed and ~~otherwise in a form consented~~ of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by ~~the Representatives, and will file~~ reference therein) as such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreementreasonably requests. (e) IfThe Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a ~~prospectus relating to the Securities as~~ result of which it is necessary, in the opinion of counsel for the Underwriters ~~is (~~or ~~but~~ counsel for the ~~exemption in Rule 172 would be) required~~ Company, to ~~be delivered under the Securities Act in connection with sales by any Underwriter~~ amend or ~~dealer, any event occurs as a result of which the General Disclosure Package or~~ supplement the Prospectus ~~as then amended or supplemented would~~ 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,~~ therein not misleading in the light of the circumstances ~~under which they were made, not misleading~~existing at the time it is delivered to a purchaser, or if ~~for any other reason~~ it shall be ~~necessary during~~ necessary, in the ~~same period~~ opinion of either such counsel, at any such time to amend or supplement the ~~General Disclosure Package~~ Registration Statement or ~~the Prospectus or to file under the Exchange Act any document incorporated by reference in~~ the Prospectus in order to comply with the ~~provisions~~ requirements of the ~~Securities Act, the Exchange~~ 1933 Act or the ~~Trust Indenture Act~~1933 Act Regulations, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, then the Company will promptly prepare and file with the ~~Commission, at its own expense, an~~ Commission such amendment or ~~supplement which will~~ supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or ~~an amendment which will effect~~ to make the Registration Statement and Prospectus comply with such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereofrequirements. (fg) ~~As soon~~ The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities, the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as ~~practicable~~you may designate. In each jurisdiction in which the Underwritten Securities, ~~but~~ the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Warrant Securities, if any; provided, however, that the Company shall not ~~later than 16 months, after the date~~ be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (h) With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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" (gas defined in such Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ meet the ~~listing~~ requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur. (j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time period prescribed by the 1934 Act and the 1934 Act Regulations. (k) [Intentionally Left Blank] (l) If the Preferred Shares or Depositary Shares are convertible into shares of Common Stock or if Common Stock Warrants are issued, the Company will reserve and keep available at all times, free of preemptive or other similar rights, a sufficient number of shares of Common Stock or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Common Stock Warrants. (m) If the Underwritten Securities are Common Stock, the Company will use its best efforts to list such shares of Common Stock on the New York Stock Exchange ~~within 30 days~~ or such other national securities exchange on which the Company's shares of Common Stock are then listed. If the ~~Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date~~ Preferred Shares or Depository Shares are convertible into shares of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedCommon Stock, the Company will ~~pay or cause~~ use its best efforts to ~~be paid all expenses incident to~~ list the ~~performance~~ shares of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ Common Stock issuable upon conversion of the ~~Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees~~ Preferred Shares or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities Depositary Shares on the New York Stock Exchange or such other national securities exchange on which the Company's shares of Common Stock are then listed. (n) The Company has complied and ~~(viii) all other costs and expenses incident to~~ will comply with the ~~performance~~ provisions of Florida H.B. 1771, codified as Section 517.075 of the ~~obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood~~Florida Statutes, ~~however~~1987, ~~that except~~ as ~~provided in this Section~~amended, ~~Section 6 entitled “Indemnity~~ and ~~Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay~~ all ~~of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected~~ regulations thereunder relating to issuers doing business with ~~any offers they may make~~Cuba.

Appears in 2 contracts

Sources: Underwriting Agreement (Kimco Realty Corp), Underwriting Agreement (Kimco Realty Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (ai) The Company ~~has filed~~ will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B or ~~will~~ 430C under the Act and (B) not file ~~each Statutory~~ any amendment to the Registration Statement or distribute an amendment or supplement to the Time of Sale Prospectus ~~(including~~ or the Prospectus, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Securities Act. (ii) The Company will (i) not make any offer relating to the Offered ADSs that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission under Rule 433(d)(1)(i) under the Securities Act without the prior consent of the Representatives (each, a “Permitted Free Writing Prospectus”);(ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~and in accordance with~~ Rule ~~424(b~~433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not ~~later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement~~have been required to file thereunder. The Company ~~has complied and~~ will ~~comply with~~ satisfy the conditions in Rule 433 of under the ~~Rules and Regulations~~Securities Act to avoid a requirement to file with the Commission any electronic road show. (biii) The Company will promptly advise the Representatives ~~promptly~~ (A) when the Registration Statement or any post-effective amendment thereto and any ADS Registration Statement shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement,~~ Statement or any ADS Registration Statement or for supplement to the Time of Sale Prospectus or the Prospectus or ~~the General Disclosure Package~~ for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any ADS Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Securities Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (civ) The Company ~~represents~~ will cooperate with the Representatives in endeavoring to: (i) qualify the Offered ADSs for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and ~~agrees that~~shall use its best efforts to maintain such qualification in effect for so long a period as may be required by such laws in connection with the distribution of the Offered ADSs, ~~unless~~ and (ii) make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided 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 jurisdiction where it ~~obtains~~ is not now so qualified or to execute a general consent to service of process in any jurisdiction or subject itself to taxation as doing business in any jurisdiction or required to file such a consent. (v) The Company will deliver to, or upon the ~~prior consent~~ order of the Representatives, ~~and each Underwriter represents and agrees that~~from time to time, ~~unless it obtains the prior consent~~ as many copies of the Preliminary Prospectus as the Representatives may reasonably request. The Company ~~and~~ will deliver to, or upon the order of, the Representatives, ~~it has not made and will not make~~ from time to time, as many copies of any ~~offer relating to the Securities that would constitute an~~ Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) (the “Prospectus Delivery Period”) is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and the ADS Registration Statements and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and the ADS Registration Statements (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (vi) Until the completion of the distribution of the Offered ADSs as contemplated in this Agreement and the Prospectus, ~~or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of~~ the ~~Rules and Regulations,~~ Company will file all documents required to be filed with the ~~Commission. Any such free writing prospectus consented~~ Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the ~~Company and~~ Exchange Act. If during the ~~Representatives is hereinafter~~ period in which a prospectus (or, in lieu thereof, the notice referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in under Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d173(a) ~~The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of~~ under the Securities ~~and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period~~ Act) is required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable law, the Company agrees to promptly prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement~~ will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (vii) If the Time of Sale Prospectus is being used to solicit offers to buy the Offered ADSs at a ~~material fact~~ time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or ~~omit~~ in the reasonable opinion of the Underwriters, it becomes necessary to ~~state any material fact necessary~~ amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or ~~if for any other reason it shall be necessary during~~ to make the ~~same period to amend or supplement~~ statements therein not conflict with the ~~General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference~~ information contained in the ~~Prospectus in order to comply with the provisions of the Securities Act~~Registration Statement then on file, ~~the Exchange Act~~ or ~~the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and~~ if ~~such event shall occur or if, in the opinion of counsel for the Underwriters,~~ it is necessary at any time to amend or supplement the ~~General Disclosure Package or the~~ Time of Sale Prospectus to comply with ~~the Securities Act~~applicable law, the Company ~~will~~ agrees to promptly ~~prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver~~ Time of ~~any of the conditions set forth in Section 5 hereof~~Sale Prospectus. (fviii) As Prior to or on the Closing Date, the Company agrees to deposit Ordinary Shares with the Depositary in accordance with the provisions of the Deposit Agreement and will otherwise comply with the Deposit Agreement so that ADRs evidencing Offered ADSs will be executed (and, if applicable, countersigned) and issued by the Depositary against receipt of such Ordinary Shares and delivered to the Underwriters at such Closing Date. (ix) The Company will make generally available to its security holders and the Representatives, as soon as ~~practicable~~it is practicable to do so, but in any event not later than ~~16 months,~~ 18 months after the date of this Agreement, ~~the Company will make generally available to its securityholders~~ an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the date of this ~~Agreement and satisfying~~ Agreement, which earnings statement shall satisfy the ~~provisions~~ requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gx) ~~The~~ During the period of five years hereafter, the Company will furnish to the Representatives ~~copies~~ and, upon request, to each of the ~~Registration Statement~~other Underwriters, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~practicable after the end of each fiscal year, a copy of its annual report for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report of the Company filed with ~~respect~~ the Commission under the Exchange Act or mailed to ~~any amendment or supplement~~stockholders; and (ii) from time to time, ~~during~~ such other information concerning the ~~period mentioned in Section 4(e) above and in such quantities~~ Company as the Representatives may reasonably request~~. The Company will pay~~ ; provided, however, that the ~~expenses~~ requirements of ~~printing~~ this clause (x) shall be satisfied so long as the reports referenced herein are available on the Commission’s Electronic Data Gathering, Analysis and ~~distributing to the Underwriters all such documents~~Retrieval system. (hxi) ~~The~~ Prior to the Closing Date, the Company will ~~arrange for~~ furnish to the ~~qualification~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the ~~Securities~~ Company for ~~sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided~~any period subsequent to September 30, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject2010. (ixii) ~~The Company will use its commercially reasonable efforts to effect the listing~~ No offering, sale, short sale or other disposition of Ordinary Shares or ADSs of the ~~Securities on the New York Stock Exchange within 30 days~~ Company or other securities convertible into or exchangeable or exercisable for Ordinary Share or ADSs or derivative of the ~~Closing Date.~~ Ordinary Shares or ADSs (jor agreement for such) ~~During the~~ will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 45 days after the date of the Prospectus, ~~not~~ directly or indirectly, by the Company other than the grant of options, rights or warrants by the Company pursuant to ~~offer~~any of its employee share stock option, ~~sell~~stock bonus, ~~contract~~ benefit or other employee compensation plans or arrangements existing on the date of this Agreement and which are described in the Time of Sale Prospectus, the issuance of Ordinary Shares or ADSs pursuant to ~~sell~~any exercise of options, ~~pledge~~rights or warrants granted under such plans or arrangements, ~~grant any~~ the filing of a registration statement on Form S-8 by the Company with the Commission with respect to the Ordinary Shares or ADSs underlying the warrant, right or option ~~to purchase~~grants made under such plans or arrangements, ~~make any short sale~~ or otherwise ~~dispose, except as provided~~ than hereunder ~~of, any securities of the Company that are substantially similar to the Securities, without~~ or with the prior written consent of Jefferies. Notwithstanding the ~~Representatives~~foregoing, if (1) during the last 17 days of the 45-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 45-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 45-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless Jefferies waives, in writing, such extension. (kxiii) ~~Whether or not~~ During the ~~transactions contemplated in this Agreement are consummated or this Agreement~~ period that the prospectus is ~~terminated~~required to be delivered under the Securities Act, the Company will ~~pay or cause~~ use its best efforts to ~~be paid all expenses incident to~~ list the ~~performance~~ Offered ADSs on the Nasdaq Global Market and maintain the listing of the Offered ADSs on the Nasdaq Global Market. (xiv) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Offered ADSs as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus~~the Time of Sale Prospectus and the Prospectus and shall file such reports with the Commission with respect to the sale of the Offered ADSs and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act. (xv) During the period of one year after the Closing Date, the ~~Prospectus~~Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Offered ADSs in such a manner as would require the Company to register as an investment company under the ▇▇▇▇ ▇▇▇. (xvi) The Company will indemnify and hold harmless the Underwriters against any ~~Issuer Free Writing Prospectus~~ documentary, stamp or similar issue tax, including any interest and ~~amendments~~ penalties, on the creation, issue and ~~supplements~~ sale of the Offered ADSs and on the execution and delivery of this Agreement. (xvii) Prior to the Closing Date or the Option Closing Date, the Company will not issue any press release or other communication directly or indirectly and will not hold any press conference (the “Communication”) with respect to the Company or any of the ~~foregoing~~Subsidiaries, ~~including all printing costs associated therewith~~the financial condition, ~~and the mailing and delivering~~ results of ~~copies thereof to the Underwriters and dealers~~operations, ~~in the quantities hereinabove specified~~business, ~~(ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters~~properties, ~~including any transfer~~ assets, or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees liabilities of the Company ~~for~~ or any ~~“road show” undertaken in connection with~~ of the ~~marketing of~~ Subsidiaries, or the offering of the ~~Securities~~ADSs, ~~and one-half of~~ without your prior consent, unless in the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) all other costs and expenses incident to the performance of the obligations reasonable judgment of the Company ~~hereunder for which provision~~ and its counsel, such Communication is ~~not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,”~~ required by law or requirements of any stock exchange and the ~~last paragraph of Section 8 below~~Company provided the Representatives with reasonable advance notice under the circumstances. (xviii) 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 ~~Underwriters~~ stabilization or manipulation of the price of any securities of the Company. (xix) The Company will ~~pay~~ take all necessary actions to make available to holders of ~~their costs and expenses~~its ADSs, including ~~fees and disbursements of their counsel, transfer taxes payable on resale of any~~ holders of the ~~Securities~~ Offered ADSs, the information and documentation necessary for such holders to make a qualified electing fund election for the fiscal year ending December 31, 2010 and to provide any such holder with access to necessary information in the event of an audit by ~~them and any advertising expenses connected with any offers they may make~~U.S. tax authorities.

Appears in 2 contracts

Sources: Underwriting Agreement (Amarin Corp Plc\uk), Underwriting Agreement (Amarin Corp Plc\uk)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (a) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a ~~reasonable opportunity~~ copy or to ~~comment~~ which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Notes and (c) file on a timely basis all reports and any ~~such proposed amendment~~ definitive proxy or ~~supplement~~information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Notes by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, the Company ~~shall~~ will not file any such ~~proposed~~ report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object; and~~ objected in writing or which is not in compliance with the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedExchange Act. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (a) not make any offer relating to the ~~Securities~~ Notes that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (c) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (d) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (diii) The Company will prepare a final term sheet ~~relating to~~ (the ~~Securities, containing only information that describes~~ “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives and as described on Schedule III, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (iv) The Company will advise the Representatives promptly (a) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Notes, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Notes for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or such suspension of qualification. (v) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Notes within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act. (vi) If at any time when Notes remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form ~~consented~~ satisfactory to the Representatives, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will ~~file~~ use its best efforts to cause such ~~final term sheet~~ registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (viii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required ~~by Rule 433(d)(5)(ii~~under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish upon request to the Representatives signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith. (ix) of The Company will comply with the Securities Act and the Rules and Regulations ~~following~~ and the ~~date such final terms have been established for all classes~~ Exchange Act, and the rules and regulations of the ~~offering~~ Commission thereunder, so as to permit the completion of the ~~Securities~~distribution of the Notes as contemplated in this Agreement and the Prospectus. ~~Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Subject to the ~~use by any Underwriter~~ provisions of Section 4(i) above, if during the period in which a ~~free writing~~ prospectus ~~that contains only~~ (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing the preliminary terms of~~ under the Securities Act) is required by law to be delivered by an Underwriter or ~~their offering or (y) information that describes the final terms~~ a dealer any event shall occur as a result of ~~the Securities or their offering and that is included~~ which, in the ~~final term sheet~~ judgment of the Company ~~contemplated in the first sentence of this subsection~~ or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the ~~Underwriters is (~~Underwriters, it becomes necessary to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (x) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (b) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fxi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of ~~at least 12~~ twelve consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gxii) The Company will, for a period of five years from the Closing Date, furnish upon request to the Representatives, 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 upon request to the Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders. (xiii) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplementnot, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities beginning on ~~the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from~~ the date hereof and continuing to and including the ~~date 30 days after~~ business day following the ~~date of the Prospectus~~Closing Date, ~~not to~~ offer, sell, contract to ~~sell, pledge, grant any option to purchase, make any short sale~~ sell or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any debt securities of or guaranteed by the Company ~~that~~ which are substantially similar to the ~~Securities,~~ Notes without the Representatives’ prior written ~~consent of the Representatives~~consent. (kxiv) ~~Whether or not~~ The Company will use the ~~transactions contemplated in~~ net proceeds from the sale of the Notes pursuant to this Agreement ~~are consummated or this Agreement is terminated,~~ in the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities manner specified under the ~~Securities Act and all other fees or expenses~~ heading “Use of Proceeds” in ~~connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus,~~ the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Underwriting Agreement (Health Care Reit Inc /De/), Underwriting Agreement (Health Care Reit Inc /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a)~~ 3.1. The Company ~~has filed or will file each Statutory Prospectus (including~~ agrees to use commercially reasonable efforts, within the ~~Prospectus) with~~ requirements of applicable law, to ensure that the ~~Commission pursuant to~~ rights granted under this Agreement are effective and ~~in accordance with Rule 424(b) not later than~~ that the ~~second business day following~~ parties enjoy the ~~earlier of the date it is first used and the execution and delivery~~ benefits of this Agreement. ~~The Company has complied and will comply with Rule 433~~ Such actions include, without limitation, whenever required under this Agreement to effect a registration (including an Additional Registration Statement filed pursuant to Section 2.1.4), the use of the ~~Rules~~ Company’s commercially reasonable efforts to, as expeditiously as reasonably possible and ~~Regulations.~~subject to the requirements under the applicable securities laws: 3.1.1. prepare and file a registration statement with respect to the Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Initiating Holders, keep such registration statement effective for a period of up to one hundred eighty (b180) ~~The Company will advise~~ days, or in the ~~Representatives promptly~~ case of ~~any proposal to amend~~ registration on a Shelf Registration Statement on Form S-3 or ~~supplement~~ Form F-3, for a minimum of two (2) years, or, in either case, if earlier, until the ~~Registration Statement,~~ distribution contemplated in the ~~Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement~~registration statement has been completed; provided, however, that such one hundred eighty (180) day or two (2) year period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter, from selling any Registrable Securities included in such registration; 3.1.2. prepare and file such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the applicable securities laws in order to enable the disposition of all Registrable Securities covered by such registration statement; 3.1.3. furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the applicable securities laws, and such documents as the selling Holders may reasonably request in order to facilitate their disposition of their Registrable Securities; 3.1.4. use its commercially reasonable efforts to register and qualify the Registrable Securities covered by such registration statement under such other securities laws of such jurisdictions as shall be reasonably requested by the selling Holders; 3.1.5. Notwithstanding Section 3.1.4 hereof and anything to the contrary in this Agreement, the Company shall register shares under this Agreement in a certain jurisdiction only provided the Company shall not be required to qualify to do business or to file a general consent to service of process in any such ~~proposed amendment~~ states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by applicable securities laws; 3.1.6. in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering; 3.1.7. use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system on which the Company’s securities are then listed; 3.1.8. provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and, provided that the Company’s securities are listed on a national securities exchange or trading system in the United States, provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration; 3.1.9. promptly make available for inspection by the selling Holders, any underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, reasonably required for such purposes and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as reasonably necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith; 3.1.10. notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; 3.1.11. after such registration statement becomes effective, notify each selling Holder of any request by the applicable securities exchange commission that the Company amend or supplement ~~to which the Representatives reasonably object; and the Company will also advise the Representatives promptly~~ such registration statement or prospectus; 3.1.12. notify each selling Holder of the ~~filing~~ happening of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities event that would ~~constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of~~ cause the ~~Rules and Regulations, required to be filed with the Commission. Any such free writing~~ prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred an applicable registration statement to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would include contain an untrue statement of a material fact or omit ~~to state~~ any ~~material~~ fact necessary in order to make the statements made therein, in ~~the~~ light of the circumstances under which they were made, not misleading, ~~or if for~~ and, at the request of any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Actsuch Holder, the Company ~~promptly will notify~~ shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the ~~Representatives~~ purchasers of such ~~event~~Registrable Securities, ~~and if~~ such ~~event~~ prospectus shall ~~occur~~ not contain an untrue statement of a material fact or ifomit to state any fact necessary to make the statements therein, in light of the ~~opinion of counsel for the Underwriters~~circumstances under which they were made, ~~it is necessary at any time to amend the General Disclosure Package or the Prospectus to~~ not misleading; 3.1.13. comply with ~~the Securities Act, the Company will promptly prepare~~ all applicable rules and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any regulations of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will~~ SEC and make ~~generally~~ available to its ~~securityholders~~ shareholders an ~~earning~~ earnings statement ~~covering~~ (in a ~~period of at least 12 months beginning after the date of this Agreement and satisfying~~ form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the ~~Rules and Regulations. (g) The Company will furnish to~~ 12-month period beginning with the ~~Representatives copies~~ first day of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Company's first full fiscal quarter after the ~~Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the~~ effective date of each registration statement filed pursuant to this ~~Agreement~~ Agreement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K and 10-Q under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or ~~as soon as possible,~~ any successor rule thereto; 3.1.14. notify the Holders of Registrable Securities promptly of any request by the SEC for the amending or supplementing of any registration statement or prospectus with respect to any ~~amendment or supplement, during the period mentioned in Section 4(e) above~~ Registrable Securities held by such Holders and included in such ~~quantities as~~ registration statement or prospectus; and 3.1.15. advise the ~~Representatives reasonably request. The Company will pay the expenses~~ Holders of ~~printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification~~ Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the ~~Securities~~ issuance of any stop order by the SEC suspending the effectiveness of any registration statement filed pursuant to this Agreement or the initiation or threatening of any proceeding for ~~sale under~~ such purpose and promptly use its reasonable best efforts to prevent the ~~laws~~ issuance of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any ~~jurisdiction~~ stop order or to ~~file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject~~obtain its withdrawal at the earliest possible moment if such stop order should be issued. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Registration Rights Agreement (Chemomab Therapeutics Ltd.), Registration Rights Agreement (Anchiano Therapeutics Ltd.)

Appears in 2 contracts

Sources: Underwriting Agreement (Duke Energy Indiana, LLC), Underwriting Agreement (Duke Energy Indiana, LLC)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Underwriters containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430B or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the Disclosure Package or the Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute ~~an Issuer~~ a Covered Free Writing ~~Prospectus, or that would otherwise constitute~~ Prospectus unless it is a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus~~.” The Company represents that it has treated and agrees that it will~~ ; (ii) treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus~~,” as defined in Rule 433 of the Rules and Regulations~~”, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Covered Free Writing Prospectus”, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will advise the Underwriters promptly (i) of receipt of any comments from the Commission, (ii) when any supplement to the Prospectus, any Covered Free Writing Prospectus, ~~including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating~~ or any amendment to the ~~Securities~~Prospectus has been filed, ~~containing only information that describes the final terms~~ (iii) of any request of the ~~Securities and otherwise in a form consented~~ Commission for amendment of the Registration Statement or for supplement to by the ~~Representatives~~Disclosure Package or the Prospectus or for any additional information, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(iv) of the ~~Rules and Regulations following~~ issuance by the ~~date such final terms have been established for all classes~~ Commission of any stop order suspending the effectiveness of the ~~offering~~ Registration Statement or any order preventing or suspending the use of the ~~Securities. Any such final term sheet is an Issuer~~ Preliminary Prospectus, any Covered Free Writing Prospectus, the Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms or any, or of the ~~Securities~~ institution of any proceedings for that purpose or ~~their offering or (y) information that describes the final terms~~ pursuant to Section 8A of the ~~Securities or their offering and that is included in the final term sheet~~ Act, (v) of the ~~Company contemplated in~~ occurrence of any event or development within the ~~first sentence of this subsection or~~ Prospectus Delivery Period (~~ii) other information that is not “issuer information,”~~ as defined ~~in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i~~below) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the ~~General~~ Prospectus, the Disclosure ~~Package or the~~ Package, any Covered Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the Disclosure Package, any such Covered Free Writing Prospectus is delivered to a purchaser, not misleading, and (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (iv) or (vi) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (i) qualify as a foreign corporation or dealer in any jurisdiction where it would not otherwise by required to so qualify, (b) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (c) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Shares. (e) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of the Preliminary Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Permitted Free Writing Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. (f) If, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as possible; and the Company will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the ~~General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the~~ Prospectus in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ either (i) prepare and file with the ~~Commission, at its own expense,~~ Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances when it is so delivered, ~~but not later than 16 months~~be misleading, ~~after~~ or so that the ~~date of this Agreement,~~ Prospectus will comply with the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) ~~The Company will arrange for~~ If the ~~qualification~~ Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the ~~Securities for sale~~ Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the ~~laws~~ Exchange Act which shall be incorporated by reference in the Disclosure Package so that the Disclosure Package as so amended or supplemented will not, in the light of ~~such jurisdictions as~~ the ~~Representatives reasonably designate and~~ circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Disclosure Package will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectcomply with law. (i) The Company will ~~use~~ make generally available to its ~~commercially~~ security holders (which may be satisfied by filing with the Commission’s ▇▇▇▇▇ system), as soon as it is practicable to do so an earnings statement (which need not be audited) in reasonable ~~efforts to effect~~ detail, which earnings statement shall satisfy the ~~listing~~ requirements of Section 11(a) of the ~~Securities on~~ Act and Rule 158 under the ~~New York Stock Exchange within 30 days of the Closing Date~~Act. (j) ~~During~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 60 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Underwriters. (k) ~~Whether~~ The Company has caused each of the persons listed on Exhibit B to execute and deliver to you, on or ~~not~~ prior to the ~~transactions contemplated~~ date of this agreement, a letter or letters, substantially in ~~this~~ the form attached hereto as Exhibit C (the “Lock-up Agreement”). If the Underwriters, in their sole discretion, agree to release or waive the restrictions set forth in a Lock-up Agreement ~~are consummated~~ for an officer or ~~this Agreement is terminated~~director of the Company and provides the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit D hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit E hereto through a major news service at least two business days before the effective date of the release or waiver. (l) The Company will ~~pay~~ not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to ~~be paid all expenses incident to~~ constitute, the ~~performance~~ stabilization or manipulation of ~~its obligations under this Agreement, including: (i)~~ the ~~fees, disbursements and expenses~~ price of any securities of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Advanced Disposal Services, Inc.), Equity Underwriting Agreement (Advanced Disposal Services, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Stratus Services Group Inc), Underwriting Agreement (Stratus Services Group Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Sales Agents that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Sales Agents containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Sales Agents shall not previously have been advised and furnished with a copy or to which the Sales Agents shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus Supplement and for the duration of the Delivery Period. For the duration of the Delivery Period, to include in its Quarterly Reports on Form 10-Q, and in its Annual Reports on Form 10-K, a summary detailing, for the relevant reporting period, (i) the number of Shares sold through the Sales Agents pursuant to this Agreement, (ii) the net proceeds received by the Company from such sales and (iii) the compensation paid by the Company to the Sales Agents with respect to such sales (or alternatively, to prepare a prospectus supplement (each, an “Interim Prospectus Supplement”) with such summary information and, at least once a quarter and subject to Section 5(b), file such Interim Prospectus Supplement pursuant to Rule 424(b) under the Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Act)). (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus~~Prospectus unless the Sales Agents approve its use in writing prior to first use (each, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Sales Agents hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in a Sales Agent or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Sales Agent that such Sales Agent otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) ~~The~~ During the Delivery Period, the Company will ~~prepare a final term sheet relating~~ advise the Sales Agents promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Prospectus or any Issuer Free Writing Prospectus ~~and a~~ or any supplement to the Prospectus has been filed, (D) of any request by the Commission for the amending or the supplementing of the Registration Statement, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus or for ~~purposes~~ any additional information, (E) of ~~this Agreement. The Company also consents to~~ the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use by of any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and RegulationsProspectus Supplement, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eF) ~~If, at any time when a prospectus relating to~~ of the ~~Securities as in the opinion~~ occurrence of ~~counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ within the Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will cooperate with the Sales Agents in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Sales Agents may reasonably have designated in writing (and continue such qualifications in effect so long as necessary under such laws for the distribution of the Shares), and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it~~ documents, as are or may be required to continue such qualifications in effect for so long a period as the Sales Agents may reasonably request for distribution of the Shares. (e) The Company will deliver to, or upon the order of, the Sales Agents, from time to time, as many copies of the Registration Statement (excluding exhibits) and copies of the Prospectus (or the Prospectus, as amended or supplemented) as the Sales Agents may reasonably request. The Company will deliver to, or upon the order of, the Sales Agents, from time to time, as many copies of any Issuer Free Writing Prospectus as the Sales Agents may reasonably request. In case the Sales Agents are required to deliver, under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), a prospectus relating to the Shares after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, upon the request of the Sales Agents, and at its own expense, the Company shall ~~be necessary~~ prepare and deliver to the Sales Agents as many copies as the Sales Agents may request of an amended Registration Statement or amended or supplemented prospectus complying with Item 512(a) of Regulation S-K or Section 10(a)(3) of the Act, as the case may be. (f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the ~~same period~~ Delivery Period any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Sales Agents, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Sales Agents, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company as promptly as practicable will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Sales Agents an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) The Company will ~~use its commercially reasonable efforts~~ cause the Shares to ~~effect the listing of the Securities~~ be listed for trading on the ~~New York Stock~~ Exchange ~~within 30 days of the Closing Date~~and to maintain such listing. (j) ~~During~~ Upon commencement of the ~~period beginning from~~ offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder), and each time that (i) the Registration Statement or the Prospectus is amended or supplemented (other than a prospectus supplement relating solely to the offering of Shelf Securities other than the Shares or an amendment or supplement effected by the filing with the Commission of any document incorporated by reference therein which shall be subject to the provisions of subclause (ii) or (iii) below), (ii) the Company files an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, (iii) the Company files with the Commission any document (other than an Annual Report on Form 10-K or Quarterly Report on Form 10-Q) incorporated by reference into the Prospectus which contains additional or amended financial information or (iv) on such other dates as may reasonably be requested by the Sales Agents (such commencement date ~~hereof~~ (and ~~continuing~~ any such recommencement date, if applicable) and each such date referred to in (i), (ii), (iii) and ~~including~~ (iv) above, a “Representation Date”), the Company agrees to furnish or cause to be furnished to the Sales Agents forthwith a certificate dated and delivered as of such date, in form reasonably satisfactory to the Sales Agents, to the effect that the statements contained in the certificate referred to in Section 7(f) of this Agreement are true and correct at the time of such commencement, recommencement, amendment, supplement or filing, as the case may be, as though made at and as of such time modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate. (k) On each Representation Date (other than a Representation Date referred to in subclause (iii) of such definition), the Company shall cause to be furnished to the Sales Agents, dated as of such date, in form and substance satisfactory to the Sales Agents, the written opinion of, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company, as described in Section 7(b), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. (l) On each Representation Date (other than a Representation Date referred to in subclause (iii) of such definition), ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel to the Sales Agents, shall furnish to the Sales Agents a written opinion, dated as of such date ~~30 days after~~ in form and substance reasonably satisfactory to the Sales Agents. With respect to Sections 5(k) and (l) above, in lieu of delivering such an opinion for dates subsequent to the commencement of the offering of the Shares under this Agreement such counsel may furnish the Sales Agents with a letter (a “Reliance Letter”) to the effect that the Sales Agents may rely on a prior opinion delivered under Section 5(k) or Section 5(l) as the case may be, to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the ~~Prospectus~~Registration Statement and the Prospectus as amended or supplemented as of such subsequent date). (m) On each Representation Date, ~~not~~ Ernst & Young LLP and ▇▇▇▇▇▇▇▇ LLP, shall each deliver to ~~offer~~the Sales Agents the comfort letters described in Section 7(d). (n) On each Representation Date, ~~sell~~the Chief Financial Officer of the Company shall deliver to the Sales Agents the certificate with respect to certain financial information contained in the General Disclosure Package, Registration Statement and the Prospectus as amended or supplemented as of such date, as described in Section 7(e). (o) The Company agrees to comply with the Due Diligence Protocol attached hereto on Schedule IV and any other due diligence review or call reasonably requested by the Sales Agents. (p) The Company agrees to reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its obligations hereunder. (q) The Company consents to the Sales Agents trading in the Common Stock, subject to any restrictions under applicable law, for the Sales Agents’ own accounts and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement. (r) The Company agrees that each acceptance by the Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Sales Agents that the representations and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Time of Sale and the Settlement Date for the Shares relating to such acceptance as though made at and as of each of such dates (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares). (s) Prior to instructing the Sales Agents pursuant to Section 2 hereof to make sales on any given day (or as otherwise agreed between the Company and the Sales Agents), one of the Company’s representatives listed in Schedule V hereto (individually, a “Representative” and collectively, the “Representatives”), shall have approved the minimum price and maximum number of Shares to be sold on such day. (t) No offering, pledge, sale, contract to sell, ~~pledge, grant any option to purchase, make any~~ short sale or ~~otherwise dispose, except as provided hereunder of,~~ other disposition of any ~~securities~~ shares of Common Stock of the Company ~~that are substantially similar to~~ 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, during the ~~Securities~~Delivery Period, ~~without~~ directly or indirectly, by the ~~prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~Company, ~~the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including:~~ except for (i) ~~the fees, disbursements and expenses~~ registration of the ~~Company’s counsel~~ Shares and the ~~Company’s accountants in connection with~~ sales through the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements Sales Agents pursuant to ~~any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified~~this Agreement, (ii) ~~all costs and expenses related~~ grants of stock options, stock appreciation rights, restricted stock, restricted stock units or other stock-based awards pursuant to ~~the transfer and delivery~~ existing employee benefit plans of the ~~Securities to the Underwriters, including any transfer or other taxes payable thereon~~Company, (iii) issuances of shares of Common Stock pursuant to the ~~cost~~ exercise, conversion or vesting of ~~printing certificates representing~~ stock options, stock appreciation rights, restricted stock, restricted stock units, deferred stock units or other stock-based awards outstanding on the ~~Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses~~ date hereof or granted or awarded pursuant to an existing employee benefit plan of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.Comp

Appears in 2 contracts

Sources: Equity Distribution Agreement (LGI Homes, Inc.), Equity Distribution Agreement (LGI Homes, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:~~ (a) The Company ~~has filed~~ hereby agrees to use reasonable best efforts (i) to maintain the listing or ~~will file each Statutory Prospectus~~ quotation of the Common Stock on the Nasdaq Capital Market (~~including~~ or such other trading market that the ~~Prospectus~~Company applies to have the Common Stock traded on) ~~with the Commission pursuant to~~ for so long as any Investor owns unregistered Securities that have not expired by their terms and ~~in accordance with Rule 424(b~~(ii) ~~not later than the second business day~~ as promptly as practicable following the ~~earlier~~ Closing Date, to secure the listing of the ~~date it is first used~~ Common Shares and the ~~execution and delivery~~ Warrant Shares (subject to official notice of ~~this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations~~issuance) on such trading market. (b) The Company shall file a Current Report on Form 8-K and press release disclosing the material terms of the transactions contemplated hereby. The Company shall, prior to such filing, furnish to the Investors for review a copy of such Form 8-K and press release. Such press release will ~~advise~~ be issued prior to market open on the ~~Representatives promptly~~ second business day following the date of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; this Agreement and the ~~Company~~ Form 8-K will ~~also advise~~ be filed within the ~~Representatives promptly~~ time prescribed by the regulations of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedCommission. (c) ~~The Company represents and agrees that~~For so long as any Investor holds unregistered Securities that have not expired by their terms, ~~unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ (i) the Company shall use its reasonable best efforts to timely file (or obtain extensions in respect thereof and file within the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, applicable grace period) all reports required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company after the date hereof pursuant to the Exchange Act and (ii) if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to such Investor and make publicly available in accordance with Rule 144(c) such information as is required for such Investor to sell the Common Shares and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Warrant Shares under Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping144. (d) ~~The~~ No claim will be made or enforced by the Company ~~will prepare a final term sheet relating to~~ or, with the ~~Securities, containing only information that describes the final terms~~ consent of the ~~Securities and otherwise~~ Company, any other person, that any Investor is an “Acquiring Person” or a “20% Stockholder” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in ~~a form consented to~~ effect or hereafter adopted by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company ~~also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities~~ or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any Investor could be deemed to trigger the provisions of any such ~~free writing prospectus referred~~ plan or arrangement by virtue of receiving Securities pursuant to ~~in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of~~ this Agreement. (e) ~~If,~~ The Company shall continue to reserve and keep available at ~~any time when a prospectus relating to~~ all times through the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 earlier of the ~~circumstances under~~ date on which ~~they were made, not misleading, or if for any other reason it shall be necessary during~~ all Warrants have been exercised in full and the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the expiration date of the ~~Prospectus~~Warrants, ~~not~~ free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to ~~offer, sell, contract~~ issue the Warrant Shares pursuant to ~~sell, pledge, grant~~ any ~~option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities~~ exercise of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Warrants. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Securities Purchase Agreement (Biolase, Inc), Securities Purchase Agreement (Feinberg Larry N)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows~~The Company: (a) ~~The~~ shall at all times: (i) maintain at least one independent manager or director (who is in the business of serving as an independent manager or director); (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Company is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Company has ~~filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and~~ established proper reserves on its books in accordance with ~~Rule 424(b~~GAAP; (vi) not ~~later than the second~~ commingle its assets with assets of any other Person; (vii) conduct its business ~~day following the earlier of the date it is first used~~ in its own name and ~~the execution and delivery of this Agreement. The Company has complied and will~~ strictly comply with ~~Rule 433 of the Rules and Regulations.~~ all organizational formalities to maintain its separate existence; (bviii) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplementmaintain separate financial statements; provided, however, that the Company’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Company from such Affiliate and to indicate that the Company’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Company’s own separate balance sheet (if the Company prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with Parent and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other requirements under its constituent documents and Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Company, shall immediately become the member of the Company in accordance with its organizational documents. (b) shall not ~~file~~ (i) engage, directly or indirectly, in any ~~such proposed amendment~~ business, other than the actions required or ~~supplement~~ permitted to ~~which~~ be performed under the ~~Representatives reasonably object~~preceding clause (a), including, other than with respect to any warrants received in connection with a Portfolio Investment, controlling the decisions or actions respecting the daily business or affairs of any other Person except as otherwise permitted hereunder; (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Portfolio Investment unless in accordance with the Loan Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Company, enter into any transaction with an Affiliate of the Company except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Portfolio and the ~~Company will also advise~~ related assets and incidental personal property necessary for the ~~Representatives promptly~~ ownership or operation of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedthese assets. (c) ~~The Company represents~~ shall take all actions consistent with and ~~agrees that~~shall not take any action contrary to the “Assumptions and Facts” section in the opinions of Dechert LLP, ~~unless it obtains~~ dated the ~~prior consent of the Representatives~~date hereof, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer~~ relating to ~~the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules~~ certain nonconsolidation and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.true sale matters; (d) ~~The Company will prepare a final term sheet relating~~ shall not create, incur, assume or suffer to exist any Indebtedness other than Indebtedness permitted under the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this AgreementLoan Documents. The Company ~~also consents to~~ shall incur no Indebtedness secured by the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing~~ Collateral other than the ~~preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the~~ Secured Obligations. The Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not assume, guarantee, endorse or otherwise be ~~an Issuer Free Writing Prospectus~~ or become directly or contingently liable for ~~purposes~~ the obligations of ~~this Agreement.~~any Person by, among other things, agreeing to purchase any obligation of another Person, agreeing to advance funds to such Person or causing or assisting such Person to maintain any amount of capital, other than as expressly permitted under the Loan Documents; (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with ~~the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event,~~ Anti-Corruption Laws and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof.applicable Sanctions; (f) ~~As soon as practicable~~shall not amend any of its constituent documents or any document to which it is a party in any manner that could reasonably be expected to, ~~but not later than 16 months~~or that does, ~~after~~ adversely affect the ~~date of this Agreement,~~ Lenders in any material respect without the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) prior written consent of the ~~Securities Act~~ Administrative Agent and ~~Rule 158 of~~ the ~~Rules and Regulations.~~Required Financing Providers; (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not ~~be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service~~ amend the Special Purpose Provisions (as defined therein) of ~~process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use~~ its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise disposelimited liability company agreement, except ~~as provided hereunder of, any securities of the Company that are substantially similar to the Securities~~in accordance therewith, without the prior written consent of the ~~Representatives.~~Administrative Agent and the Required Financing Providers; (h) shall not, without the prior consent of the Administrative Agent (acting at the direction of the Required Financing Providers), which consent may be withheld in the sole and absolute discretion of the Required Financing Providers, enter into any hedge agreement; (i) shall not change its name, identity or corporate structure in any manner that would make any financing statement or continuation statement filed by the Company (or by the Collateral Agent on behalf of the Company) in accordance with subsection (a) above seriously misleading or change its jurisdiction of organization, unless the Company shall have given the Administrative Agent and the Collateral Agent at least 30 days prior written notice thereof, and shall promptly file, or authorize the filing of, appropriate amendments to all previously filed financing statements and continuation statements (and shall provide a copy of such amendments to the Collateral Agent and Administrative Agent together with written confirmation to the effect that all appropriate amendments or other documents in respect of previously filed statements have been filed); (j) shall do or cause to be done all things necessary to (i) preserve and keep in full force and effect its existence as a limited liability company and take all reasonable action to maintain its rights, franchises, licenses and permits material to its business in the jurisdiction of its formation and (ii) qualify and remain qualified as a limited liability company in good standing in each jurisdiction where the failure to qualify and remain qualified would reasonably be expected to have a Material Adverse Effect; (k) ~~Whether~~ shall comply with all Applicable Law (whether statutory, regulatory or ~~not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~otherwise), the noncompliance with which could reasonably be expected to have, individually or collectively, a Material Adverse Effect; (l) shall not merge into or consolidate with any person or dissolve, terminate or liquidate in whole or in part, in each case, without the prior written consent of the Administrative Agent; (m) except for Investments permitted by Section 6.03(u) and without the prior written consent of the Administrative Agent, shall not form, or cause to be formed, any Subsidiaries; or make or suffer to exist any loans or advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness, acquisition of the business or assets, or otherwise) in, any Affiliate or any other Person except investments as otherwise permitted herein and pursuant to the other Loan Documents; (n) shall ensure that (i) its affairs are conducted so that its underlying assets do not constitute “plan assets” within the meaning of the Plan Asset Rules, and (ii) neither it nor any ERISA Affiliate sponsors, maintains, contributes to or is required to contribute to or have any liability with respect to any Plan; (o) except for the security interest granted hereunder and as otherwise permitted hereunder, shall not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on the Collateral or any interest therein (other than Permitted Liens), and the Company ~~will~~ shall defend the right, title, and interest of the Collateral Agent (for the benefit of the Secured Parties) and the Lenders in and to the Collateral against all claims of third parties claiming through or under the Company (other than Permitted Liens); (p) shall promptly furnish to the Administrative Agent, and the Administrative Agent shall furnish to the Lenders, copies of the following financial statements, reports and information: (i) as soon as available, but in any event within 120 days after the end of each fiscal year of Parent, a copy of the audited consolidated and consolidating balance sheet of Parent and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year and the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year; provided, that the financial statements required to be delivered pursuant to this clause (i) which are made available via E▇▇▇▇, or any successor system of the Securities Exchange Commission, in Parent’s annual report on Form 10-K, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; (ii) as soon as available and in any event within 45 days after the end of each fiscal quarter of each fiscal year (other than the last fiscal quarter of each fiscal year), an unaudited consolidated and consolidating balance sheet of Parent and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of Parent and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, and the unaudited consolidated statements of cash flows of Parent and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to be delivered pursuant to this clause (ii) which are made available via E▇▇▇▇, or any successor system of the Securities Exchange Commission, in Parent’s quarterly report on Form 10-Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; and (iii) from time to time, such other information or documents (financial or otherwise) as the Administrative Agent or the Required Financing Providers may reasonably request; (q) shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all ~~expenses incident~~ Taxes levied or imposed upon the Company or upon the income, profits or property of the Company; provided that the Company shall not be required to ~~the performance of its obligations under this Agreement, including:~~ pay or discharge or cause to be paid or discharged any such Tax (i) the ~~fees~~amount, ~~disbursements~~ applicability or validity of which is being contested in good faith by appropriate proceedings and ~~expenses~~ for which disputed amounts adequate reserves in accordance with GAAP have been made or (ii) the failure of which to pay or discharge could not reasonably be expected to have a Material Adverse Effect; (r) shall permit representatives of the ~~Company’s counsel~~ Administrative Agent at any time and from time to time as the ~~Company’s accountants~~ Administrative Agent shall reasonably request (A) to inspect and make copies of and abstracts from its records relating to the Portfolio Investments and (B) to visit its properties in connection with the ~~registration and delivery~~ collection, processing or managing of the ~~Securities~~ Portfolio Investments for the purpose of examining such records, and to discuss matters relating to the Portfolio Investments or such Person’s performance under this Agreement and the ~~Securities Act~~ other Loan Documents with any officer or employee or auditor (if any) of such Person having knowledge of such matters. The Company agrees to render to the Administrative Agent such clerical and ~~all~~ other ~~fees or expenses~~ assistance as may be reasonably requested with regard to the foregoing; provided, that such assistance shall not interfere in ~~connection~~ any material respect with the ~~preparation~~ Company’s or the Investment Manager’s business and ~~filing~~ operations. So long as no Event of ~~the Indenture~~Default has occurred and is continuing, ~~the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus~~ such visits and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specifiedinspections shall occur only (i) upon five (5) Business Days’ prior written notice, (ii) ~~all costs~~ during normal business hours and ~~expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon,~~ (iii) no more than once in any calendar year. During the ~~cost~~ existence of ~~printing certificates representing~~ an Event of Default, there shall be no limit on the ~~Securities~~timing or number of such inspections and only one (1) Business Day’ prior notice will be required before any inspection; (s) [RESERVED]; (t) shall not make any Restricted Payments without the prior written consent of the Administrative Agent; provided that the Company may make Permitted Distributions so long as no Default or Event of Default has occurred and is continuing (or would occur after giving effect to such Permitted Distribution) and the Company gives at least two (2) Business Days’ prior written notice thereof to the Administrative Agent; (u) shall not make or hold any Investments, except the Portfolio Investments or Investments (A) constituting Eligible Investments, (ivB) that have been consented to by the Administrative Agent or (C) those the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any ~~fees charged by securities rating services for rating the Securities,~~ issuer thereof; (v) shall not request any Advance, and the ~~fees and expenses~~ Company shall not directly, or to the knowledge of the ~~Trustee~~ Company, indirectly, use, and ~~any agent~~ shall procure that its agents shall not directly, or to the knowledge of the ~~Trustee and~~ Company, indirectly, use, the ~~fees and disbursements~~ proceeds of ~~counsel~~ any Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the ~~Trustee~~ purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in ~~connection~~ any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto; (w) shall not cancel, terminate or consent to or accept any cancellation or termination of, amend, modify or change in any manner any term or condition of the Management Agreement in any manner that adversely affects the Lenders in any material respect; (x) other than pursuant to the Sale Agreement, shall not (A) transfer to any of its Affiliates any Portfolio Investment purchased from any of its Affiliates (other than sales to Affiliates conducted on terms and conditions consistent with those of an arm’s length transaction at fair market value so long as the Investment Manager obtains bid prices from at least two nationally recognized dealers (unaffiliated with the ~~Indenture and the Securities,~~ Investment Manager or its Affiliates) for such Portfolio Investment) or (viB) ~~travel and lodging expenses of officers and employees of the Company for~~ enter into any ~~“road show” undertaken in connection~~ other transaction with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of ~~the Securities by them and~~ its Affiliates, other than any ~~advertising expenses connected~~ transaction on terms that are no less favorable than those obtainable in an arm’s-length transaction with ~~any offers they may make.~~a wholly unaffiliated Pers

Appears in 2 contracts

Sources: Loan Agreement (FS Investment Corp III), Loan Agreement (FS Investment Corp III)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained~~As long as any Holder shall own Registrable Securities, the Company hereby covenants ~~with each Underwriter as follows~~and agrees: 3.6.1 the Company will not file any Registration Statement or Prospectus included therein or any other filing or document (aother than this Agreement) ~~The~~ with the Commission which refers to any Holder of Registrable Securities by name without the prior written approval of such Holder, which may not be unreasonably withheld, unless required by applicable law or the Commission Guidance; 3.6.2 at all times while it shall be a reporting company under the Exchange Act, to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company ~~has~~ after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings, provided that any documents publicly filed or ~~will file each Statutory Prospectus (including the Prospectus)~~ furnished with the Commission pursuant to the Electronic Data Gathering Analysis and ~~in accordance with Rule 424(b~~Retrieval System (or any successor thereto) ~~not later than~~ shall be deemed to have been furnished to the ~~second business day following the earlier of the date it is first used and the execution and delivery of~~ Holders pursuant to this ~~Agreement~~subsection 3.5.2. The Company ~~has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of~~ further covenants that it shall take such further action as any ~~proposal to amend or supplement the Registration Statement~~Holder may reasonably request, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating all to the ~~Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405~~ extent required from time to time to enable such Holder to sell shares of ~~the Rules and Regulations, required to be filed with the Commission. Any~~ Common Stock held by such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered Holder without registration under the Securities Act ~~in connection with sales by any Underwriter or dealer, any event occurs as a result of which~~ within the General Disclosure Package or the Prospectus as then amended or 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 limitation of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file exemptions provided by Rule 144 promulgated under the ~~Exchange~~ Securities Act (or any ~~document incorporated~~ successor rule promulgated thereafter by ~~reference in~~ the ~~Prospectus in order to comply with~~ Commission). Upon the ~~provisions~~ request of ~~the Securities Act, the Exchange Act or the Trust Indenture Act~~any Holder, the Company ~~promptly will notify the Representatives~~ shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such ~~event, and if such event shall occur or if, in the opinion~~ requirements; and 3.6.3 upon request of ~~counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act~~a Holder, the Company ~~will promptly prepare and file with~~ shall (i) authorize the ~~Commission, at its own expense, an amendment~~ Company’s transfer agent to remove any legend on share certificates of such Holder’s Common Stock or ~~supplement which will correct~~ Private Placement Warrants restricting further transfer (or any similar restriction in book entry positions of such ~~statement or omission or an amendment which will effect~~ Holder) if such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of restrictions are no longer required by the Securities Act ~~and Rule 158 of~~ or any applicable state securities laws or any agreement with the ~~Rules and Regulations. (g) The~~ Company ~~will furnish~~ to ~~the Representatives copies of the~~ which such Holder is a party, including if such shares subject to such a restriction have been sold pursuant to a Registration Statement, ~~including all exhibits~~(ii) request the Company’s transfer agent to issue in lieu thereof shares of Common Stock or Private Placement Warrants without such restrictions to the Holder upon, as applicable, surrender of any ~~related preliminary prospectus~~stock certificates evidencing such shares of Common Stock, ~~any related preliminary prospectus supplement,~~ or warrant certificates evidencing such Private Placement Warrants or to update the ~~Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements~~ applicable book entry position of such Holder so that it no longer is subject to such ~~documents~~a restriction, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(eand (iii) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use ~~its~~ commercially reasonable efforts to ~~effect~~ cooperate with such Holder to have such Holder’s shares of Common Stock or Private Placement Warrants, as the ~~listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing~~ case may be, transferred into a book-entry position at The Depository Trust Company, in each case, subject to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriterscustomary documentation, including any ~~transfer~~ documentation required by such restrictive legend or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and onebook-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeentry notation.

Appears in 2 contracts

Sources: Registration Rights Agreement (Leafly Holdings, Inc. /DE), Registration Rights Agreement (Merida Merger Corp. I)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Securities Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rule 430B under the Securities Act and (B) not file any amendment to the Registration Statement or any Rule 462(b) Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission under Rule 433 under the Securities Act unless the Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly of (A) any proposal to amend or supplement the Registration Statement, ~~the Prospectus or~~ any Preliminary Prospectus, the General Disclosure Package or the Prospectus, and will ~~afford the Representatives a reasonable opportunity to comment on any such proposed amendment~~ not effect or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any distribute such amendment or supplement ~~and~~ without the Representative’s consent, which shall not be unreasonably withheld or delayed, (B) when any Rule 462(b) Registration Statement shall have been filed with the Commission, (C) when any post-effective amendment to the Registration Statement shall have become effective, (D) any request of the ~~institution~~ Commission for amendment of the Registration Statement, any Rule 462(b) Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, (E) the issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Securities Act and (F) the receipt of any notice with respect to any suspension of qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representative may reasonably request for distribution of the ~~Securities and otherwise in a form consented~~ Shares. (e) The Company will deliver to, or upon the order of, the Representative, from time to by time, as many copies of any Preliminary Prospectus as the ~~Representatives~~Representative may reasonably request. The Company will deliver to, ~~and will file such final term sheet within~~ or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Representative, from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representative may reasonably request. The Company ~~also consents to~~ will deliver to, or upon the ~~use by any Underwriter~~ order of, the Representative during the period when delivery of a ~~free writing prospectus that contains only~~ Prospectus (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing~~ under the ~~preliminary terms~~ Securities Act) is required under the Securities Act, as many copies of the ~~Securities~~ Prospectus in final form, or ~~their offering~~ as thereafter amended or supplemented, as the Representative may reasonably request. (yf) ~~information that describes the final terms of~~ The Company will comply with the Securities ~~or their offering~~ Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to~~ under the Securities ~~as in the opinion of counsel for the Underwriters~~ Act) is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fh) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gi) ~~The~~ Prior to the First Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ the General Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) ~~During~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Representative, except for the (i) Shares to be sold hereunder, (ii) shares of Common Stock issued by the Company upon the exercise of an option, warrant or similar security or the conversion of a security outstanding on the date hereof and referred to in the Prospectus and (iii) shares of Common Stock issued or options to purchase Common Stock granted to the Company’s employees pursuant to existing employee benefit plans of the Company referred to in the Prospectus. (k) ~~Whether or not~~ The Company will use its best efforts to list the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ Shares for quotation on The Nasdaq Global Market. (l) The Company has caused each officer and director of the Company ~~will pay~~ set forth on Schedule V to furnish to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of ~~its obligations under~~ this Agreement, ~~including:~~ a letter or letters, substantially in the form attached hereto as Exhibit A (ithe “Lockup Agreement”). (m) The Company shall apply the ~~fees, disbursements and expenses~~ net proceeds of its sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, General Disclosure Package and the Prospectus. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or either Subsidiary to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will not take, directly or indirectly, any ~~preliminary prospectus~~action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any~~ stabilization or manipulation of the ~~foregoing, including all printing costs associated therewith, and the mailing and delivering~~ price of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ any securities of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Anthera Pharmaceuticals Inc), Equity Underwriting Agreement (Anthera Pharmaceuticals Inc)

Covenants of the Company. ~~In further consideration~~ (a) With a view to making available to Subscriber the benefits of Rule 144 or any other similar rule or regulation of the ~~agreements~~ Commission that may at any time permit Subscriber to sell securities of the ~~Underwriters herein contained~~Company to the public without registration, the Company ~~covenants with each Underwriter as follows~~agrees, until the Acquired Shares are registered for resale under the Securities Act, to: (ai) ~~The Company has filed or will~~ make and keep public information available, as those terms are understood and defined in Rule 144; (ii) file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and (iii) furnish to Subscriber so long as it owns Acquired Shares, promptly upon request, (A) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (B) a copy of the most recent annual report of the Company and such other reports and documents so filed by the Company and (C) such other information as may be reasonably requested to permit Subscriber to sell such securities pursuant to ~~and in accordance with~~ Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations144 without registration. (b) The ~~Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package~~ legend described in Section 6(f) shall be removed and ~~will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that~~ the Company shall ~~not file any~~ issue a certificate without such ~~proposed amendment~~ legend to the holder of the Acquired Shares upon which it is stamped or ~~supplement~~ issue to ~~which~~ such holder by electronic delivery at the ~~Representatives reasonably object; and~~ applicable balance account at The Depository Trust Company (“DTC”), if (i) such Acquired Shares are registered for resale under the Securities Act, (ii) in connection with a sale, assignment or other transfer, such holder provides the Company ~~will also advise the Representatives promptly~~ with an opinion of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its liftingcounsel, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form ~~consented~~ reasonably acceptable to by the ~~Representatives~~Company, ~~and will file~~ to the effect that such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ sale, assignment or transfer of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not Acquired Shares may be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered made without registration under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions applicable requirements of the Securities Act, or (iii) the ~~Exchange Act~~ Acquired Shares can be sold, assigned or ~~the Trust Indenture Act~~transferred pursuant to Rule 144, and (1) in each case, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, holder provides the Company ~~will promptly prepare and file~~ with ~~the Commission, at its own expense,~~ an ~~amendment~~ undertaking to effect any sales or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth other transfers in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of accordance with the Securities Act and ~~Rule 158 of the Rules and Regulations.~~ (g2) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to ~~any amendment or supplement~~clauses (i) and (iii), ~~during~~ upon the ~~period mentioned in Section 4(e) above and in~~ Company providing the Transfer Agent with such ~~quantities~~ certifications as reasonably requested, which the ~~Representatives reasonably request~~Company undertakes to provide. The Company ~~will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange~~ shall be responsible for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance fees of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act transfer agent and all ~~other~~ DTC fees ~~or expenses in connection~~ associated with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makesuch issuance.

Appears in 2 contracts

Sources: Investment Agreement (ironSource LTD), Investment Agreement (Thoma Bravo Advantage)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives in writing if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Act and (b) completion of the 180-day restricted period referred to in Section 4(k) hereof. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any amendment or supplement to the ~~Securities~~Prospectus, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes~~ or any Written Testing-the-Waters Communication has been filed, (D) of ~~this Agreement. The Company also consents to the use by~~ any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred for supplement to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus or for any additional information, including, but not limited to, any request for information concerning any Written Testing-the-Waters Communication, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any Written Testing-the-Waters Communication or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development or existence of any condition within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any written notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, electronic signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives electronic copies of the Registration Statement (including electronic copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply in all material respects with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated by this Agreement and the Prospectus. If during Prospectus Delivery Period, any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order (i) to correct any untrue statement of material fact therein or (ii) to include any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply in all material respects with the Act and the Rules and Regulations, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply in all material respects with the Act and the Rules and Regulations. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order (i) to correct any untrue statement or ~~the Prospectus~~ material fact therein or (ii) to ~~file under the Exchange Act~~ include any ~~document incorporated by reference in the Prospectus~~ material fact necessary in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict in any material respect with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply in all material respects with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and ~~Rule 158 of~~ the Rules and Regulations. , the Company promptly will prepare, file with the Commission (gif required) ~~The Company will~~ and furnish to the ~~Representatives copies~~ Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including~~ or so that the General Disclosure Package will comply in all ~~exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ material respects with the ~~Prospectus, any Issuer Free Writing Prospectus~~ Act and ~~all amendments~~ the Rules and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectRegulations. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities~~ 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 Rule 158 under the Act and will advise you in writing when such statement has been so made available; provided that the Company will be deemed to have complied with such requirement by filing such earnings statement on the ~~New York Stock Exchange within 30 days of the Closing Date~~Commission’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system). (j) ~~During~~ If prior to the Closing Date, any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning~~ covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus are prepared by or made available to the Company, the Company will furnish to the Underwriters a copy of such unaudited interim financial statements as soon as they have been prepared or made available. (k) No offering, pledge, sale, contract to sell, short sale, grant of any option to purchase or other disposition of any Common Shares of the Company or other securities convertible into or exchangeable or exercisable for Common Shares or derivative of Common Shares (or agreement for such) and no short sale (whether or not against the box) or any purchase, sale or grant of any right (including any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the ~~date hereof and continuing to and including the date 30~~ Common Shares will be made for a period of 180 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the Representatives~~. (k) Whether~~ , other than the Private Placement Shares and Common Shares or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations other securities issued under ~~this Agreement, including: (i) the fees, disbursements and expenses of~~ the Company’s ~~counsel and the Company’s accountants~~ equity incentive plan described in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ the General Disclosure Package and the Prospectus~~, any Issuer Free Writing Prospectus and amendments and supplements to any of~~ . Notwithstanding the foregoing, ~~including all printing costs associated therewith~~in the event that the Company ceases to be an Emerging Growth Company, ~~and~~ if (1) during the ~~mailing and delivering~~ last 17 days of ~~copies thereof~~ the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the ~~Underwriters and dealers~~Company occurs, or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waive, in writing, such extension. The Company shall promptly notify the ~~quantities hereinabove specified~~Representatives of any earnings release, ~~(ii) all costs and expenses related~~ news or event that may give rise to ~~the transfer and delivery~~ an extension of the ~~Securities~~ initial 180-day restricted period. (l) The Company will use its reasonable best efforts to list the ~~Underwriters~~Shares, ~~including any transfer or other taxes payable thereon~~subject to notice of issuance, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and ~~(viii) all other costs and expenses incident to~~ maintain the ~~performance~~ listing of the ~~obligations~~ Shares on the New York Stock Exchange. (m) The Company has caused each officer and director of the Company ~~hereunder~~ to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for ~~which provision is not otherwise made~~ an officer or director of the Company and provide the Company with notice of the impending release or waiver, substantially in ~~this Section. It is understood~~the form attached as Exhibit B hereto, ~~however~~at least three business days before the effective date of the release or waiver, ~~that except~~ the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver. (n) The Company shall apply the net proceeds of its sale of the Shares as ~~provided~~ set forth in ~~this Section~~the Registration Statement, ~~Section 6 entitled “Indemnity and Contribution,”~~ the General Disclosure Package and the ~~last paragraph~~ Prospectus and shall file such reports with the Commission with respect to the sale of ~~Section 8 below~~the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (o) The Company shall not invest, or otherwise use, the ~~Underwriters will pay all~~ proceeds received by the Company from its sale of ~~their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ the Shares in such a manner as would require the Company or any of the ~~Securities by them~~ Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will maintain a transfer agent and a registrar for the Common Shares. (q) The Company will not take, directly or indirectly, any ~~advertising expenses connected with~~ action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any ~~offers they may make~~securities of the Company.

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Blue Capital Reinsurance Holdings Ltd.), Equity Underwriting Agreement (Blue Capital Reinsurance Holdings Ltd.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing in a timely manner or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Shares. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company has satisfied or will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) ~~The Company will prepare a final term sheet relating~~ Prior to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes termination of the offering of the ~~Securities. Any such final term sheet is an~~ Shares, the Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, (D) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, (E) of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eF) Ifof the occurrence of any event or development within the period when delivery of a Prospectus (or, ~~at any time when a prospectus relating~~ in lieu thereof, the notice referred to ~~the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in~~ under Rule ~~172 would be~~173(a) ~~required to be delivered~~ under the ~~Securities~~ Act) is required under the Act ~~in connection with sales by any Underwriter or dealer, any event occurs~~ (the “Prospectus Delivery Period”) as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ Prospectus Delivery Period, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives as many copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any applicable federal or state securities law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any applicable federal state or law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectGeneral Disclosure Package. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, an earnings statement or statements (which need not be audited) which shall satisfy the ~~listing~~ requirements of Section 11(a) of the ~~Securities on~~ Act and Rule 158 under the ~~New York Stock Exchange within 30 days of~~ Act, which obligation may be satisfied by filing such earnings statement or statements with the ~~Closing Date~~Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system. (j) ~~During~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date~~ of 30 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, provided, however, that the ~~Representatives~~Company may issue and sell (i) Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to any employee equity incentive plan of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus that is in effect at or prior to the Closing Date, including, for the avoidance of doubt, the Omnibus Incentive Plan (each an “Incentive Plan”), (ii) Common Stock issuable upon exchange of Common Units, (iii) Common Stock in respect of tax withholding payments due upon the exercise of options or the vesting of restricted stock grants pursuant to any Incentive Plan; and (iv) Common Stock in an amount equal to up to five percent of the outstanding shares of Common Stock collectively beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act) by Stockholder Entities (as defined in that certain Amended and Restated Stockholders Agreement, dated as of August 9, 2017, by and among the Company and the other parties thereto) on the Closing Date immediately after this offering, or securities convertible into or exercisable or exchangeable for such amount of Common Stock, in connection with mergers or acquisitions, joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clause (iv), the recipient or acquiree of any such Common Stock or securities convertible into or exercisable or exchangeable for Common Stock is a party to or enters into an agreement substantially in the form of Exhibit A hereto with respect to such securities (the “Lock-up Agreement”). (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its best efforts to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with maintain the listing of the ~~Securities~~ Shares on the New York Stock Exchange. (l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (m) The Company has not taken, and 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 unlawful stabilization or manipulation of the price of any securities of the Company. (n) The Company’s Common Stock (i) is an “actively-traded security” as defined by Rule 100(b) of Regulation M under the Exchange Act, (ii) is exempted from the requirements of Rule 101 of Regulation M by Rule 101(c)(1) thereunder, and (~~viii~~iii) ~~all other costs and expenses incident to the performance~~ has an Average Daily Trading Volume of ~~the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except~~ at least $1.0 million (as provided in ~~this Section, Section 6 entitled “Indemnity~~ Regulation M) and ~~Contribution,” and the last paragraph~~ a public float of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeat least $150.0 million (as defined in Regulation M).

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Invitation Homes Inc.), Equity Underwriting Agreement (Invitation Homes Inc.)

Covenants of the Company. ~~In further consideration~~ Except as permitted by this Agreement, as set forth on the Company Disclosure Schedule, or as consented to in writing by Parent, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the date of this Agreement until the earlier of the ~~agreements~~ termination of this Agreement in accordance with its terms or the ~~Underwriters herein contained~~Company Merger Effective Time, the Company ~~covenants~~ (i) shall, and shall cause each of its Subsidiaries to, conduct its business in the usual, regular and ordinary course of business consistent with ~~each Underwriter as follows~~past practice, use commercially reasonable efforts to conduct their business in compliance with all applicable Law and to maintain and preserve fully their respective business organizations, present lines of business, assets, employees and contractual and business relationships, and (ii) shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do any of the following: (a) ~~The~~ (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or property or any combination thereof and whether or not out of earnings and profits) in respect of, any of its Equity Interests (other than (A) dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company ~~has filed~~ to its parent, (B) distributions reasonably believed by the Company to be necessary for the Company to maintain its status as a REIT under the Code and to avoid the imposition of corporate level Tax or ~~will file~~ excise Tax under Section 4981 of the Code, and any necessary corresponding distribution on CNL LP Units; provided that all distributions made with respect to each ~~Statutory Prospectus (including the Prospectus) with the Commission~~ share of Company Common Stock pursuant to this clause (B), subject to the proviso set forth at the end of this Section 5.1(a) and except for the quarterly dividend referenced in clause (C) below, shall reduce the Company Common Share Merger Consideration per common share on a dollar for dollar basis and all distributions made to with respect to CNL LP Units not owned by the Company or its wholly-owned subsidiaries pursuant to this clause (B) shall reduce the Partnership Merger Consideration per applicable CNL LP Unit on a dollar for dollar basis, (C) the quarterly dividend to holders of the Company Common Stock for the fourth fiscal quarter of 2006 not to exceed $0.33 per share of Company Common Stock and the corresponding quarterly distribution on the CNL LP Units and (D) cash dividends on the Company Series A Preferred Stock and Company Series C Preferred Stock in accordance with ~~Rule 424(b~~the respective terms thereof), (ii) ~~not later~~ split, combine or reclassify any of its Equity Interests, or (iii) purchase, repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests, any securities convertible into or exchangeable or exercisable for, or any rights, warrants or options to acquire, any such shares or interests (other than in connection with the ~~second business day following~~ redemption of CNL LP Units in accordance with the ~~earlier~~ terms of the ~~date it~~ Partnership Agreement); provided, however, in the event that the Outside Date is ~~first used and~~ extended from June 30, 2007 to September 30, 2007 in accordance with the ~~execution and delivery~~ terms of this Agreement~~. The~~ , dividends of up to $0.20 per share of Company ~~has complied~~ Common Stock paid by the Company during the period between June 30, 2007 and ~~will comply with Rule 433 of~~ September 30, 2007 that are necessary for the ~~Rules and Regulations~~Company to maintain its status as a REIT under the Code shall not reduce the Company Common Share Merger Consideration. (b) ~~The Company will advise the Representatives promptly~~ authorize for issuance, issue, sell, pledge or otherwise dispose of any ~~proposal~~ of its Equity Interests, or any securities convertible into or exchangeable or exercisable for, or any rights, warrants or options to ~~amend or supplement the Registration Statement~~acquire, ~~the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent Equity Interests (other than the issuance of ~~any such stop order~~ shares of Company Common Stock upon (i) the exercise of Company Stock Options in accordance with the terms thereof, (ii) the exercise of Warrants outstanding on the date hereof in accordance with the terms thereof, (iii) the conversion of Company Series A Preferred Stock outstanding on the date hereof and ~~to obtain as soon as possible its lifting~~Company Series C Preferred Stock outstanding on the date hereof into Company Common Stock in accordance with the respective terms thereof, ~~if issued.~~and (iv) the exchange of CNL LP Units outstanding on the date hereof for Company Common Stock in accordance with the CNL Partnership Agreement); (c) ~~The~~ other than as necessary to comply with any applicable laws, rules or regulations or NYSE rules or regulations after giving notice to Parent of any such proposed amendment, (i) amend the Company ~~represents and agrees that, unless it obtains the prior consent~~ Articles of Incorporation or Company Bylaws or Charter Document of any of the ~~Representatives~~Company’s Subsidiaries, ~~and each Underwriter represents and agrees that~~including the CNL Partnership Agreement, ~~unless it obtains the prior consent~~ (ii) amend any term of any outstanding security or equity interest of the Company ~~and the Representatives, it has not made and will not make~~ or any ~~offer relating to the Securities that would constitute an Issuer Free Writing Prospectus~~of its Subsidiaries, or ~~that would otherwise constitute a “free writing prospectus,” as defined~~ (iii) alter through merger, liquidation, reorganization, restructuring or in ~~Rule 405~~ any other fashion the corporate structure or ownership of the ~~Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the~~ Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 or any of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.its Subsidiaries; (d) ~~The~~ other than the purchase by the Company ~~will prepare~~ or any of its Subsidiaries of restaurant properties subject to triple net leases consistent with past practice, acquire or agree to acquire by merging or consolidating with, or by purchasing all or a ~~final term sheet relating to the Securities, containing only information that describes the final terms~~ substantial portion of the ~~Securities and otherwise~~ assets of or any equity interest in, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof; provided, that notwithstanding the foregoing, under no circumstances shall the Company nor any of its Subsidiaries knowingly, after reasonable investigation, acquire or, except as provided in ~~a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~Section 5.1(d) of the ~~Rules and Regulations following~~ Company Disclosure Schedule, operate, or agree to acquire or operate, any real property (whether in fee or pursuant to a lease) on which an underground storage tank containing or intended for the ~~date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet~~ storage of, petroleum products is ~~an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ (or was previously) located (further provided that, notwithstanding anything herein to the ~~use by any Underwriter~~ contrary, the provision of ~~a free writing prospectus that contains only (i)(x) information describing~~ Parent’s consent to the ~~preliminary terms~~ acquisition or operation of ~~the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included~~ such properties shall be in the ~~final term sheet~~ sole discretion of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementParent). (e) ~~If, at any time when a prospectus relating to the Securities as~~ except in the ~~opinion~~ ordinary course of ~~counsel for~~ business consistent with past practice, including, without limitation, pursuant to any credit, loan or equipment financing arrangement existing on the ~~Underwriters is~~ date hereof, pledge or otherwise encumber any Company Properties or assets (~~or but for the exemption in Rule 172 would be~~including any Equity Interests) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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,~~ Company or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of ~~the conditions set forth in Section 5 hereof.~~its Subsidiaries; (f) ~~As soon~~ except in the ordinary course of business consistent with past practice pursuant to the Company’s investment property sales program, sell, lease, hypothecate or otherwise dispose of, or agree to sell, lease, hypothecate or otherwise dispose of, any Company Properties or assets; (g) enter into an agreement with respect to a sale of all or substantially all of the capital stock, other Equity Interests or assets of the Company or any of its Subsidiaries, whether by merger, consolidation, liquidation, business combination, or asset or stock sale; (h) (i) other than (A) such indebtedness which is reflected in the Company’s financial statements included in any Company SEC Reports and (B) borrowings in the ordinary course of business under any credit, loan or equipment financing arrangement existing on the date hereof, incur any indebtedness for borrowed money, enter into or amend any existing capital lease, conditional sale, swap, derivative or hedging or similar agreement, or assume, guarantee, or endorse or otherwise as ~~practicable~~an accommodation become responsible for any indebtedness of another Person, ~~but not later~~ (ii) issue or sell any debt securities or rights to acquire any debt securities of the Company or any of its Subsidiaries, or (iii) make any loans, advances (other than ~~16 months~~business expense advances to employees of the Company or any Subsidiary of the Company in the ordinary course of business consistent with past practice) or capital contributions to, ~~after~~ or investment in, any other Person, other than the Company or any of its Subsidiaries to the extent required by the agreements governing such joint ventures; (i) other than in the ordinary course of business consistent with past practice or as set forth in the Company Disclosure Schedule, make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of $1,750,000 in the aggregate for the Company and its Subsidiaries; (j) make any changes in accounting methods, principles or practices or change its fiscal year, except insofar as may be required by a change in GAAP as concurred with by the Company’s independent accountants or pursuant to written instructions, comments or orders from the SEC; (k) prepay any long-term debt or pay, discharge or satisfy any liabilities or obligations, other than (i) the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice and in accordance with their terms as in effect on the date of this Agreement, of liabilities and obligations reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company ~~will make generally available~~ SEC Reports filed prior to ~~its securityholders an earning statement covering a period of at least 12 months beginning after~~ the date of this Agreement ~~and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.~~ (~~g) The Company will furnish~~ to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus extent so reflected and ~~all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding~~ reserved against) or incurred since the date of ~~this Agreement~~ such financial statements in the ordinary course of business consistent with past practice, or ~~as soon as possible, with respect to~~ (ii) involving the payment of any ~~amendment or supplement, during~~ amount less than $500,000 in the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.aggregate; (hl) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; providedwaive, ~~that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction~~ release, assign, settle or ~~to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject.~~compromise (i) ~~The Company will use its commercially reasonable efforts to effect~~ any Action or material liability other than in the ~~listing~~ ordinary course of ~~the Securities on the New York Stock Exchange within 30 days~~ business consistent with past practice or (ii) any Action that is brought by any current, former or purported holder of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company or any Subsidiary in its capacity as such and that ~~are~~ (A) requires any payment to such security holders by the Company or any Subsidiary or (B) adversely affects in any material respect the ability of the Company and the Subsidiaries to conduct their business in a manner consistent with past practice; (m) except as required to comply with applicable law or agreements, plans or arrangements in existence on the date hereof, (i) increase in any respect the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee other than in the ordinary course of business consistent with past practice, (ii) accelerate the payment, right to payment or vesting of any compensation or benefits, including any Company Stock Options outstanding on the date hereof, (iii) enter into or adopt any employment, change in control, “continuity,” severance or other similar plan, program, policy or agreement with any of its directors, officers or employees, or (iv) enter into or amend any contract, transaction, indebtedness or other arrangement with, directly or indirectly, any of the directors, officers, stockholders or other Affiliates of the Company or any of its Subsidiaries, or any of their respective Affiliates or family members; (n) except as contemplated by this Agreement, required by law, or necessary to maintain the Company’s status as a REIT under the Code and after consultation with Parent, make or rescind any material Tax election, settle or compromise any material Tax liability or amend in any material respect any Tax return; (o) fail to confer on a regular basis as reasonably requested by Parent with one or more representatives of Parent to report on, and deliver to Parent copies of such documents reasonably requested by Parent with respect to, material operational matters and any proposals to engage in material transactions; (p) fail to maintain in full force and effect insurance coverage substantially similar to insurance coverage maintained on the ~~Securities, without the prior written consent of the Representatives.~~date hereof; (kq) ~~Whether~~ adopt any new Employee Benefit Plan or ~~not~~ amend any existing Employee Plan or rights or make any contribution, other than regularly scheduled contributions consistent with past practice, to any Employee Plan; (r) settle or compromise any stockholder or partner derivative or class action claims arising out of or in connection with any of the transactions contemplated ~~in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under~~ by this Agreement~~, including:~~ ; (is) ~~the fees, disbursements and expenses~~ accept a promissory note in payment of the ~~Company’s counsel and~~ exercise price payable under any option to purchase shares of Company Common Stock unless such payment is expressly permitted by such option; (t) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization (other than the ~~Company’s accountants~~ Mergers); (u) fail to file in ~~connection~~ a timely manner any filings with the ~~registration and delivery of the Securities~~ SEC required under the Securities Act ~~and all other fees~~ or ~~expenses in connection with~~ the ~~preparation and filing~~ Exchange Act or the rules or regulations promulgated thereunder; (v) (i) enter into any agreement that if entered into prior to the date hereof would be a Material Contract set forth on Schedule 3.18 of the ~~Indenture~~Company Disclosure Schedule, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, or (ii) ~~all costs and expenses related to the transfer and delivery of the Securities to the Underwriters~~modify, ~~including~~ amend in any material respect, waive any material obligation, assign or otherwise transfer or terminate any Material Contract or waive, release or assign any rights or claims thereto or thereunder; (w) initiate or consent to any material zoning reclassification of any owned or leased Company Properties or any material change to any approved site plan, special use permit, planned unit development approval or other ~~taxes payable thereon~~land use entitlement affecting any owned or material leased Company Properties; (x) adopt, ratify or effectuate a stockholders’ rights plan or agreement; (~~iii~~y) ~~the cost of printing certificates representing the Securities~~effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN or any similar state or local law; or (z) authorize any of, or commit or agree, in writing or otherwise, to take (ivi) any ~~fees charged by securities rating services for rating~~ of, the ~~Securities,~~ foregoing actions or (vii) any action which would materially impair or prevent the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost satisfaction or occurrence of any ~~aircraft chartered~~ conditions set forth in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeArticle VII hereof.

Appears in 2 contracts

Sources: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter~~ the Agent as follows: (ai) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within During the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when which a prospectus relating to the ~~Securities as in the opinion of counsel for the Underwriters~~ Stock is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the Securities Act (including, without limitation, pursuant to Rule 173(d) of the Securities Act), the Company will give the Agent notice of its intention to file or prepare any amendment to the Registration Statement or any amendment, supplement or revisions to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, and will furnish the Agent with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Agent or counsel of the Agent shall reasonably object, unless the Company’s legal counsel has advised the Company that filing such document is required by law; provided, that the Company has no obligation to provide the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such filing that does not name the Agent or does not directly relate to the transaction contemplated hereunder. (ii) The Company will, during any period when the delivery of a prospectus is required in connection with ~~sales by any Underwriter~~ the offering or ~~dealer~~sale of Stock (including, without limitation, pursuant to Rule 173(d) of the Securities Act), if any event ~~occurs~~ shall have occurred as a result of which ~~the General Disclosure Package or~~ 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, not misleading, or or, if for any other reason it shall be necessary ~~during the same period~~ to amend or supplement the ~~General Disclosure Package~~ Prospectus (including, without limitation, any document incorporated by reference therein) in order to comply with the Securities Act or the Exchange Act, notify the Agent and, upon its request, file such document and prepare and furnish without charge to the Agent as many copies as the Agent may from time to time reasonably request of an amended or supplemented Prospectus (or incorporated document, as the case may be) that will correct such statement or omission or effect such compliance. Upon such notification, the Agent will cease the solicitation of offers to purchase the Stock and suspend the use of the Prospectus until such amendment or supplement is filed; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Stock sold hereunder or which an investor has agreed to purchase but which has not been delivered by the Company and paid for by such investor as contemplated hereby, prior to the giving of such notice. (iii) The Company will file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Agent, be required by the Securities Act or requested by the Commission in connection with the distribution of the Stock by the Agent. (iv) During the period in which a prospectus relating to the Stock is required to be delivered under the Securities Act (including, without limitation, pursuant to Rule 173(d) of the Securities Act), the Company agrees (A) to make no further amendment or any supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, except as provided herein or unless the Company’s legal counsel has advised the Company that such amendment or supplement is required by law; (B) to advise the Agent promptly of the time when any amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish the Agent with copies thereof; (C) to file ~~under~~ promptly 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 or 15(d) of the Exchange Act subsequent to the date of this Agreement; (D) to advise the Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (including, without limitation, any document incorporated by reference in any of the foregoing) or for additional information; and (E) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal. (v) During the period in which a prospectus is required to be delivered under the Securities Act or the Exchange Act in connection with any sale of Stock (including, without limitation, pursuant to Rule 173(d) of the Securities Act), the Company will deliver promptly to the Agent and to counsel for the Agent a signed copy of each amendment to the Registration Statement filed with the Commission, including all consents and exhibits filed therewith. The copies of the Registration Statement and each amendment thereto furnished to the Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or its Interactive Data Electronic Applications system (collectively, “▇▇▇▇▇”), except to the extent permitted by Regulation S-T; provided, however, that the Company shall not be required to furnish any document to the Agent to the extent such document is available on ▇▇▇▇▇. (vi) The Company will deliver promptly to the Agent such number of the following documents as the Agent shall reasonably request for the purposes contemplated by the Securities Act: (A) the Prospectus and any amended or supplemented Prospectus, (B) each Issuer Free Writing Prospectus and (C) any document incorporated by reference in the Prospectus. The copies of such documents furnished to the Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company will not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Agent. (viii) The Company will comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. During any period when the delivery of a prospectus is required in connection with the offering or sale of Stock (including, without limitation, pursuant to Rule 173(d) of the Securities Act), if any event shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus in order to comply with the ~~provisions of the~~ Securities Act, ~~the Exchange Act or the Trust Indenture Act, the Company promptly will~~ to notify the ~~Representatives of~~ Agent and, upon its request, to file such ~~event,~~ document and ~~if such event shall occur or if, in~~ to prepare and furnish without charge to the ~~opinion of counsel for~~ Agent as many copies as the ~~Underwriters, it is necessary at any~~ Agent may from time to ~~amend the General Disclosure Package~~ time reasonably request of an amended or ~~the~~ supplemented Issuer Free Writing Prospectus ~~to comply with the Securities Act, the Company will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which~~ that will correct such conflict, statement or omission or ~~an amendment which will~~ effect such compliance~~. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~. (fix) As soon as ~~practicable, but not later than 16 months,~~ practicable after ~~the date of this Agreement~~each Effective Date, the Company will make generally available to the Company’s security holders and deliver to the Agent an earnings statement of the Company and its ~~securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of~~ subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 of under the ~~Rules and Regulations~~Securities Act). (gx) ~~The~~ Promptly from time to time during the term of this Agreement, the Company will ~~furnish~~ take such action to qualify the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus Stock for offering and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the securities or Blue Sky laws of such jurisdictions as the ~~Representatives~~ Agent may reasonably ~~designate~~ request, and ~~will continue~~ to maintain such qualifications in effect so for as long as ~~required for~~ may be necessary to complete the ~~distribution~~sale of the Stock; provided, that in connection therewith the Company shall not be required to (A) qualify ~~to do business~~ as a foreign corporation in any jurisdiction or in which it would not otherwise be required to so qualify, (B) file or a general consent ~~or otherwise subject itself~~ to service of process in any such jurisdiction or (C) subject itself to taxation in any jurisdiction ~~where~~ in which it is would not ~~already so~~ otherwise be subject. (ixi) The Company will ~~use~~ reasonably cooperate on a timely basis with any reasonable due diligence request from, or review conducted by, the Agent or its ~~commercially~~ counsel from time to time in connection with the transactions contemplated hereby, including, without limitation, and upon reasonable ~~efforts to effect~~ notice, providing information and making available documents and appropriate corporate officers, during regular business hours and at the ~~listing of~~ Company’s principal offices and/or by telephone, as the ~~Securities on the New York Stock Exchange within 30 days of the Closing Date~~Agent or its counsel may reasonably request (each such process, a “Due Diligence Process”). (jxii) ~~During~~ Upon commencement of the ~~period beginning from~~ offering of Stock under this Agreement, promptly after each (A) date the Registration Statement or the Prospectus shall be amended or supplemented (other than (1) by an amendment or supplement providing solely for the determination of the terms of the Stock, (2) in connection with the filing of any report or other document under Section 13, 14 or 15(d) of the Exchange Act or (3) by a prospectus supplement relating to the offering of other securities (including, without limitation, other shares of Common Stock)) (each such date, a “Registration Statement Amendment Date”), (B) date ~~hereof and continuing~~ on which the Company shall file (x) an Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Earnings 8-K or (y) an amendment to ~~and including~~ any such document (each such date, a “Company Periodic Report Date”) and, (C) reasonable request by the Agent; provided, that such request follows a Due Diligence Process (each date ~~30 days after~~ of any such request, a “Supplemental Request Date”) (each of the date of the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities~~ commencement of the ~~Company that are substantially similar to the Securities, without the prior written consent~~ offering of ~~the Representatives. (k) Whether or not the transactions contemplated in~~ Stock under this Agreement ~~are consummated or this Agreement~~ and each Registration Statement Amendment Date, Company Periodic Report Date and Supplemental Request Date is ~~terminated~~hereinafter called a “Representation Date”), the Company will ~~pay~~ furnish or cause to be ~~paid all expenses incident~~ furnished to the ~~performance~~ Agent (with a copy to counsel to the Agent) a certificate dated such Representation Date (or, in the case of ~~its obligations~~ an amendment or supplement to the Registration Statement or the Prospectus (including, without limitation, by the filing of an Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Earnings 8-K or any amendment thereto), the date of the effectiveness of such amendment to the Registration Statement or the date of filing with the Commission of such supplement or any such Form 10-K, Form 10-Q, Earnings 8-K or amendment thereto, as the case may be), in a form reasonably satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 5(e)(ii) of this Agreement which was last furnished to the Agent are true and correct as of the date of such certificate as though made at and as of the date of such certificate (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to the date of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(e)(ii), but modified as necessary to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to the date of such certificate. As used in this paragraph, to the extent there shall be an Applicable Time on or following the applicable Representation Date, “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time. (xiii) Upon commencement of the offering of Stock under this Agreement, and promptly after each other Representation Date, the Company will furnish or cause to be furnished to the Agent (with a copy to counsel to the Agent), unless the Agent otherwise agrees in writing, the written opinion and letter of each counsel to the Company, dated such Representation Date (or, in the case of an amendment or supplement to the Registration Statement or the Prospectus (including~~: (i)~~ , without limitation, by the ~~fees~~filing of an Annual Report on Form 10-K or Quarterly Report on Form 10-Q or any amendment thereto), ~~disbursements and expenses~~ the date of the ~~Company’s counsel and~~ effectiveness of such amendment to the ~~Company’s accountants in connection~~ Registration Statement or the date of filing with the ~~registration~~ Commission of such supplement or any such Form 10-K, Form 10-Q or amendment thereto, as the case may be), in a form and ~~delivery~~ substance reasonably satisfactory to the Agent and its counsel, of the ~~Securities under~~ same tenor as the ~~Securities Act~~ opinions and ~~all other fees or expenses~~ letters referred to in ~~connection with the preparation~~ Sections 5(b) and ~~filing~~ 5(c) of ~~the Indenture~~this Agreement, but modified as necessary to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to the date of such opinion and letter or, in lieu of such opinion and letter, counsel last furnishing any ~~preliminary prospectus~~such opinion and letter to the Agent shall furnish the Agent with a letter substantially to the effect that the Agent may rely on such counsel’s last opinion and letter to the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the ~~Prospectus, any Issuer Free Writing~~ Prospectus and ~~amendments~~ the Pricing Disclosure Package as amended and ~~supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof~~ supplemented to the ~~Underwriters and dealers~~date of such letter authorizing reliance). As used in this paragraph, ~~in the quantities hereinabove specified, (ii) all costs and expenses related~~ to the ~~transfer and delivery of~~ extent there shall be an Applicable Time on or following the ~~Securities~~ applicable Representation Date, “promptly” shall be deemed to be on or prior to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel next succeeding Applicable Time. Solely for the ~~Trustee in connection with~~ purposes of this paragraph, the ~~Indenture and~~ term “Representation Date” shall not include the ~~Securities,~~ date of filing of any Earnings 8-K or any amendment thereto. (vixiv) ~~travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing~~ Upon commencement of the offering of ~~the Securities~~Stock under this Agreement, and ~~one~~promptly after each other Representation Date, the Company will cause KPMG LLP, or other independent accountants reasonably satisfactory to the Agent, to furnish to the Agent (with a copy to counsel to the Agent), unless the Agent otherwise agrees in writing, a letter, dated such Representation Date (or, in the case of an amendment or supplement to the Registration Statement or the Prospectus (including, without limitation, by the filing of an Annual Report on Form 10-~~half~~ K, Quarterly Report on Form 10-Q, Earnings 8-K or any amendment thereto), the date of the ~~cost~~ effectiveness of ~~any aircraft chartered in connection~~ such amendment to the Registration Statement or the date of filing with the ~~road show~~Commission of such supplement or any such Form 10-K, ~~(vii)~~ Form 10-Q, Earnings 8-K or any ~~fees~~ amendment thereto, as the case may be), in form reasonably satisfactory to the Agent and ~~expenses incurred in connection with the listing~~ its counsel, of the ~~Securities on~~ same tenor as the ~~New York Stock Exchange and (viii~~letter referred to in Section 5(d) ~~all other costs and expenses incident~~ hereof, but modified as necessary to relate to the ~~performance~~ Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to the date of ~~the obligations of the Company hereunder for which provision is not otherwise made~~ such letter. As used in this ~~Section. It is understood~~paragraph, ~~however~~to the extent there shall be an Applicable Time on or following the applicable Representation Date, ~~that except~~ “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time. (xv) The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as ~~provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below~~applicable, the ~~Underwriters will pay all~~ number of ~~their costs and expenses~~shares of Stock sold through the Agent under this Agreement, ~~including fees and disbursements of their counsel, transfer taxes payable on resale of any of~~ the ~~Securities by them and any advertising expenses connected with any offers they may make.~~Net Proceeds to t

Appears in 2 contracts

Sources: Distribution Agreement (American Equity Investment Life Holding Co), Distribution Agreement (American Equity Investment Life Holding Co)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “"free writing prospectus,” " (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “"Permitted Free Writing Prospectus~~.” The Company represents~~ "); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Act and (b) completion of the 30-day restricted period referred to in the Lockup Agreements. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the ~~Securities~~Prospectus, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing ~~Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Prospectus, any Written Testing-the-Waters Communication or any amendment to the ~~use by~~ Prospectus has been filed, (D) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred for supplement to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus or for any additional information, including, but not limited to, any request for information concerning any Written Testing-the-Waters Communication, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the "Prospectus Delivery Period") is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectlaw. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities on~~ 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 ~~New York Stock Exchange within 30 days~~ effective date of the ~~Closing Date~~Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (j) ~~During~~ Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning from~~ covered by the ~~date hereof~~ most recent financial statements appearing in the Registration Statement, the General Disclosure Package and ~~continuing~~ the Prospectus. (k) No offering, pledge, sale, contract to ~~and including~~ sell, short sale or other disposition of any shares of Common Stock of the ~~date~~ Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 30 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the Representatives. (kl) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its best efforts to ~~be paid all expenses incident~~ list the Shares, subject to ~~the performance~~ notice of ~~its obligations under this Agreement~~issuance, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and ~~(viii) all other costs and expenses incident to~~ maintain the ~~performance~~ listing of the ~~obligations~~ Shares on the New York Stock Exchange. (m) The Company has caused each officer and director and specific shareholders of the Company ~~hereunder for which provision is not otherwise made~~ to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in ~~this Section. It is understood~~the form attached hereto as Exhibit A (the "Lockup Agreement"). (n) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, ~~however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,”~~ the General Disclosure Package and the ~~last paragraph~~ Prospectus and shall file such reports with the Commission with respect to the sale of ~~Section 8 below~~the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (o) The Company shall not invest, or otherwise use the ~~Underwriters will pay all~~ proceeds received by the Company from its sale of ~~their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ the Shares in such a manner as would require the Company or any of the ~~Securities by them~~ Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (q) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (r) The Company will use its best efforts to operate in conformity with the requirements for qualification and ~~any advertising expenses connected~~ taxation as a REIT under the Code commencing with ~~any offers they may make~~its taxable year ending December 31, 2012 unless and until such time as the Company's board of directors determines in good faith that operating in such manner is not in the best interests of the Company and its stockholders.

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Javelin Mortgage Investment Corp.), Equity Underwriting Agreement (Javelin Mortgage Investment Corp.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Units by the Underwriters. (b) The Company will not make any offer relating to the Units that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act). The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ one signed copy of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company will use its best efforts promptly to prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus. (g) If the General Disclosure Package is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company will use its best efforts promptly ~~prepare and~~ to prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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 ~~Securities for sale~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company shall apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (k) The Company shall cause the proceeds of the offering to be held in the Trust Account to be invested only in U.S. “government securities” within the meaning of Section 2(a)(16) of the 1940 Act having a maturity of 180 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the 1940 Act as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise use its best efforts to conduct its business (both prior to and after the consummation of an initial Business Combination) in a manner so that it will not become subject to the Investment Company Act. (l) Except as disclosed in the Registration Statement, the Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (m) For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (n) For a period of five years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture, the Registration Statement,~~ Company’s Form 10-Q quarterly report. (o) The Company will not consummate a Business Combination with any ~~preliminary prospectus, the Prospectus,~~ entity that is affiliated with any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Stockholder or any of the ~~foregoing, including all printing costs associated therewith, and~~ Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of the ~~mailing and delivering of copies thereof~~ FINRA that such Business Combination is fair to the ~~Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ Company’s stockholders from a financial point of ~~the Securities to the Underwriters, including~~ view. The Company shall not pay any ~~transfer~~ Insider or ~~other taxes payable thereon, (iii) the cost~~ any of ~~printing certificates representing the Securities, (iv)~~ their affiliates or family members any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of or compensation from the Company for ~~any “road show” undertaken~~ services rendered to the Company prior to, or in connection ~~with~~ with, the ~~marketing~~ consummation of an initial Business Combination, other than payments pursuant to the ~~offering of~~ Services Agreement; provided that the ~~Securities, and one~~Insiders shall be entitled to reimbursement from the Company for their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (p) For a period of five years from the ~~listing~~ Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~Securities on~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the ~~New York Stock Exchange~~ Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (~~viii~~ii) ~~all other costs~~ such additional documents and ~~expenses incident~~ information with respect to the ~~performance~~ Company and the affairs of ~~the obligations~~ any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. (q) For a period equal to five years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for ~~which provision~~ the registration of the Warrants under the Act. (r) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants. (s) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is ~~not otherwise~~ engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide to FINRA, the Representative and their counsel complete details regarding any financial, investment, advisory, mergers & acquisition and/or business combination services provided or to be provided by the Underwriters or affiliates thereof to the Company, including a description of services, copies of agreements governing services, identification of the underwriter and related persons performing services, and disclosure of the services arrangements. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the tender offer documents or proxy statement which the Company will file in connection with the Business Combination (t) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (u) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. At or prior to the commencement of separate trading of the Warrants and Common Stock, the Company shall promptly issue a press release and file a Current Report on Form 8-K announcing that separate trading of the Warrants and Common Stock will begin. (v) The Company shall advise FINRA if it is ~~understood~~aware that any 5% or greater stockholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of a FINRA member participating in the distribution of the Securities. (w) The Company hereby agrees that until the Company consummates a Business Combination, ~~however~~it shall not issue any Common Stock or any options or other securities convertible into Common Stock, or any preferred shares of the Company which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination. (x) The Company will seek to have all vendors, service providers, prospective target business or other entities with which it does business enter into an agreement waiving any right, title, interest or claim of any kind in or to any monies held in the Trust Account for the benefit of the holders (each, a “Public Stockholder”) of the Common Stock sold as part of the Units in the Offering (the “Public Shares”). (y) The Company shall not take any action or omit to take any action that ~~except~~ would cause the Company to be in breach or violation of its memorandum and articles of association. (z) If the Company elects to seek stockholder approval of a Business Combination as ~~provided~~ described in ~~this Section~~Section (cc), ~~Section 6 entitled~~ prior to the consummation of a Business Combination, the Company may instruct the trustee under the Trust Agreement that amounts necessary to purchase up to 15% of the Common Stock sold as part of the Units in the Offering (the “~~Indemnity and Contribution,~~Public Shares” and the ~~last paragraph~~ holder of ~~Section 8 below~~such shares, a “Public Stockholder”) (1,500,000 shares, or 1,725,000 shares if the ~~Underwriters will pay all~~ Underwriters’ over-allotment option is exercised in full) at any time commencing after the filing of ~~their costs~~ a preliminary proxy statement for an initial Business Combination and ~~expenses~~ending on the record date for the vote to be held to approve such initial Business Combination (such purchases being referred to herein as “Open Market Purchases”) be released to the Company from the Trust Account. Such Open Market Purchases (i) may be made only in open market transactions at times when the Company is not in possession of material non-public information, ~~including fees~~ (ii) may not be made during a restricted period under Regulation M under the Exchange Act and ~~disbursements~~ (iii) are intended to comply with Rule 10b-18 under the Exchange Act, at prices (inclusive of ~~their counsel, transfer taxes payable on resale of any of~~ commissions) not to exceed an amount equal to (A) the ~~Securities by them and any advertising expenses connected with any offers they may make.~~aggregate amount the

Appears in 2 contracts

Sources: Underwriting Agreement (Azteca Acquisition Corp), Underwriting Agreement (Azteca Acquisition Corp)

Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement1. The Company has ~~complied and~~ delivered or made available, or will ~~comply with Rule 433~~ as promptly as practicable deliver or make available, to the Placement Agent materially complete conformed copies of the ~~Rules~~ Registration Statement and ~~Regulations.~~ of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (~~b) The~~ without exhibits), the Time of Sale Prospectus, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will ~~advise~~ distribute, prior to the ~~Representatives promptly~~ Closing Date, any offering material in connection with the offering and sale of ~~any proposal~~ the Securities pursuant to ~~amend or supplement~~ the Placement other than the Time of Sale Prospectus, the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly copies of the ~~filing of~~ documents incorporated by reference therein and any ~~such amendment or supplement and of the institution~~ other materials permitted by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedSecurities Act. ~~(c)~~ 2. The Company ~~represents and agrees that~~covenants that it will not, unless it obtains the prior written consent of the ~~Representatives~~Placement Agent, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not~~ make any offer relating to the Securities that would constitute ~~an Issuer~~ a Company Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of the ~~Rules and Regulations,~~ Securities Act) required to be filed by the Company with the ~~Commission~~Commission or retained by the Company under Rule 433 of the Securities Act. ~~Any~~ In the event that the Placement Agent expressly consents in writing to any such free writing prospectus ~~consented to by the Company and the Representatives is hereinafter referred to as~~ (a “Permitted Free Writing Prospectus~~.” The~~ ”), the Company ~~represents~~ covenants that it ~~has treated and agrees that it will~~ shall (i) treat each Permitted Free Writing Prospectus as ~~an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~a Company Free Writing Prospectus, and ~~has complied and will~~ (ii) comply with the requirements of ~~Rules~~ Rule 164 and 433 of the ~~Rules and Regulations~~ Securities Act applicable to ~~any~~ such Permitted Free Writing Prospectus, including in respect of timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record keeping. ~~(d)~~ 3. The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) Ifmaintain, at ~~any time when~~ its expense, a ~~prospectus relating to the Securities as in the opinion of counsel~~ registrar and transfer agent for the ~~Underwriters is (or but~~ ADSs. Except for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities ActPlacement, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securitiesnot, without the prior written consent of the ~~Representatives~~Placement Agent until May 14, 2025, engage in any securities offering. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Placement Agency Agreement (PicoCELA Inc.), Placement Agency Agreement (PicoCELA Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained~~As long as any Holder shall own Registrable Securities, the Company hereby covenants ~~with each Underwriter as follows~~and agrees: 3.6.1 the Company will not file any Registration Statement or Prospectus included therein or any other filing or document (aother than this Agreement) ~~The~~ with the Commission which refers to any Holder of Registrable Securities by name without the prior written approval of such Holder, which may not be unreasonably withheld, unless required by applicable law or the Commission Guidance; 3.6.2 at all times while it shall be a reporting company under the Exchange Act, to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company ~~has~~ after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings, provided that any documents publicly filed or ~~will file each Statutory Prospectus (including the Prospectus)~~ furnished with the Commission pursuant to the Electronic Data Gathering Analysis and ~~in accordance with Rule 424(b~~Retrieval System (or any successor thereto) ~~not later than~~ shall be deemed to have been furnished to the ~~second business day following the earlier of the date it is first used and the execution and delivery of~~ Holders pursuant to this ~~Agreement~~subsection 3.5.2. The Company ~~has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of~~ further covenants that it shall take such further action as any ~~proposal to amend or supplement the Registration Statement~~Holder may reasonably request, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating all to the ~~Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405~~ extent required from time to time to enable such Holder to sell shares of ~~the Rules and Regulations, required to be filed with the Commission. Any~~ Common Stock held by such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered Holder without registration under the Securities Act ~~in connection with sales by any Underwriter or dealer, any event occurs as a result of which~~ within the General Disclosure Package or the Prospectus as then amended or 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 limitation of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file exemptions provided by Rule 144 promulgated under the ~~Exchange~~ Securities Act (or any ~~document incorporated~~ successor rule promulgated thereafter by ~~reference in~~ the ~~Prospectus in order to comply with~~ Commission). Upon the ~~provisions~~ request of ~~the Securities Act, the Exchange Act or the Trust Indenture Act~~any Holder, the Company ~~promptly will notify the Representatives~~ shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such ~~event, and if such event shall occur or if, in the opinion~~ requirements; and 3.6.3 upon request of ~~counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act~~a Holder, the Company ~~will promptly prepare~~ shall (i) authorize the Company’s transfer agent to remove any legend on share certificates of such Holder’s Common Stock or Private Units (and ~~file with the Commission, at its own expense, an amendment~~ underlying securities) restricting further transfer (or ~~supplement which will correct~~ any similar restriction in book entry positions of such ~~statement or omission or an amendment which will effect~~ Holder) if such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of restrictions are no longer required by the Securities Act ~~and Rule 158 of~~ or any applicable state securities laws or any agreement with the ~~Rules and Regulations. (g) The~~ Company ~~will furnish~~ to ~~the Representatives copies of the~~ which such Holder is a party, including if such shares subject to such a restriction have been sold pursuant to a Registration Statement, ~~including all exhibits~~(ii) request the Company’s transfer agent to issue in lieu thereof shares of Common Stock or Private Units (and underlying securities) without such restrictions to the Holder upon, as applicable, surrender of any ~~related preliminary prospectus~~stock certificates evidencing such shares of Common Stock, ~~any related preliminary prospectus supplement,~~ or warrant certificates evidencing such Private Units (and underlying securities) or to update the ~~Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements~~ applicable book entry position of such Holder so that it no longer is subject to such ~~documents~~a restriction, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(eand (iii) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use ~~its~~ commercially reasonable efforts to ~~effect~~ cooperate with such Holder to have such Holder’s shares of Common Stock or Private Units (and underlying securities), as the ~~listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing~~ case may be, transferred into a book-entry position at The Depository Trust Company, in each case, subject to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriterscustomary documentation, including any ~~transfer~~ documentation required by such restrictive legend or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and onebook-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeentry notation.

Appears in 2 contracts

Sources: Registration Rights Agreement (Southland Holdings, Inc.), Registration Rights Agreement (Legato Merger Corp. Ii)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with you, and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ If the Company does not elect to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus) , in such number as you shall reasonably request, and promptly file or transmit for filing with the Commission ~~pursuant to and~~ the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ 1933 Act Regulations. (b) The Company will ~~advise~~ notify you immediately, and if written notice is requested by you, confirm such notice in writing as soon as reasonably practicable, of (i) the ~~Representatives promptly~~ effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~General Disclosure Package and will afford~~ 1934 Act, (iii) the ~~Representatives a reasonable opportunity~~ receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to ~~comment on~~ the Registration Statement or any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (c) ~~The Company represents and agrees that, unless it obtains~~ At any time when the ~~prior consent~~ Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the ~~Representatives~~Underwritten Securities, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ the Company ~~and the Representatives, it has not made and~~ will ~~not make~~ give you notice of its intention to file or prepare any ~~offer relating~~ amendment to the ~~Securities that would constitute an Issuer Free Writing~~ Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or ~~that would~~ otherwise ~~constitute a “free writing prospectus,” as defined~~ (including any revised prospectus which the Company proposes for use by the Underwriters in ~~Rule 405~~ connection with an offering of Underwritten Securities which differs from the ~~Rules and Regulations~~Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed ~~with the Commission. Any such free writing prospectus consented~~ pursuant to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule ~~433~~ 424(b) of the ~~Rules and~~ 1933 Act Regulations, ~~and has complied~~ or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will ~~comply~~ furnish you with copies of any such amendment or supplement or other documents proposed to be filed or used a reasonable amount of time prior to such proposed filing or use, as the ~~requirements of Rules 164~~ case may be, and ~~433 of~~ will not file any such amendment or supplement or other documents in a form to which you or counsel for the ~~Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~Underwriters shall reasonably object. (d) The Company will ~~prepare a final term sheet relating~~ deliver to ~~the Securities, containing only information that describes the final terms~~ each Underwriter as many signed and conformed copies of the ~~Securities~~ Registration Statement as originally filed and ~~otherwise in a form consented~~ of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by ~~the Representatives, and will file~~ reference therein) as such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreementreasonably requests. (e) IfThe Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a ~~prospectus relating to the Securities as~~ result of which it is necessary, in the opinion of counsel for the Underwriters ~~is (~~or ~~but~~ counsel for the ~~exemption in Rule 172 would be) required~~ Company, to ~~be delivered under the Securities Act in connection with sales by any Underwriter~~ amend or ~~dealer, any event occurs as a result of which the General Disclosure Package or~~ supplement the Prospectus ~~as then amended or supplemented would~~ 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,~~ therein not misleading in the light of the circumstances ~~under which they were made, not misleading~~existing at the time it is delivered to a purchaser, or if ~~for any other reason~~ it shall be ~~necessary during~~ necessary, in the ~~same period~~ opinion of either such counsel, at any such time to amend or supplement the ~~General Disclosure Package~~ Registration Statement or ~~the Prospectus or to file under the Exchange Act any document incorporated by reference in~~ the Prospectus in order to comply with the ~~provisions~~ requirements of the ~~Securities Act, the Exchange~~ 1933 Act or the ~~Trust Indenture Act~~1933 Act Regulations, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, then the Company will promptly prepare ~~and~~ and, subject to Section 3(c), file with the ~~Commission, at its own expense, an~~ Commission such amendment or ~~supplement which will~~ supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or ~~an amendment which will effect~~ to make the Registration Statement and Prospectus comply with such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereofrequirements. (fg) ~~As soon~~ The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities, the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as ~~practicable~~you may designate. In each jurisdiction in which the Underwritten Securities, ~~but~~ the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Warrant Securities, if any; provided, however, that the Company shall not ~~later than 16 months, after the date~~ be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (h) With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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" (gas defined in such Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ meet the ~~listing~~ requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur. (j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time period prescribed by the 1934 Act and the 1934 Act Regulations. (k) The Company will not, between the date of the applicable Terms Agreement and the Closing Time, without your prior written consent, which shall not be unreasonably withheld, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any Securities of the same class or series or ranking on a parity with such Underwritten Securities (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement) or, if such Terms Agreement relates to Underwritten Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, employee and director stock option plans or as partial or full payment for properties to be acquired by the Company), except as may be otherwise provided in the applicable Terms Agreement. You may release us from the obligations of this Section 3(k) in your sole discretion at any time without notice. (l) If the Preferred Shares or Depositary Shares are convertible into shares of Common Stock or if Common Stock Warrants are issued, the Company will reserve and keep available at all times, free of preemptive or other similar rights, a sufficient number of shares of Common Stock or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Common Stock Warrants. (m) If the Underwritten Securities are Common Stock, Preferred Shares or Depositary Shares, the Company will use its best efforts to list such shares of Common Stock, Preferred Shares or Depositary Shares, as the case may be, on the New York Stock Exchange ~~within 30 days~~ or such other national securities exchange on which the Company's shares of Common Stock are then listed. If the ~~Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date~~ Preferred Shares or Depositary Shares are convertible into shares of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedCommon Stock, the Company will ~~pay or cause~~ use its best efforts to ~~be paid all expenses incident to~~ list the ~~performance~~ shares of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ Common Stock issuable upon conversion of the ~~Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees~~ Preferred Shares or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities Depositary Shares on the New York Stock Exchange ~~and (viii) all~~ or such other ~~costs and expenses incident to~~ national securities exchange on which the ~~performance~~ Company's shares of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCommon Stock are then listed.

Appears in 2 contracts

Sources: Underwriting Agreement (Kimco Realty Corp), Underwriting Agreement (Kimco Realty Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:~~ (a) The Company ~~has filed~~ agrees to take all necessary action to cause (i) the Board to be comprised at least of nine directors or ~~will file each Statutory Prospectus~~ such other number of directors as the Board may determine, subject to the terms of this Agreement, the Charter or the Bylaws of the Company; (~~including~~ ii) the ~~Prospectus) with the Commission pursuant to and~~ individuals designated in accordance with ~~Rule 424(b) not later than~~ Section 3 to be included in the ~~second business day following~~ slate of nominees to be elected to the ~~earlier~~ Board at the next annual or special meeting of stockholders of the ~~date it is first used~~ Company at which directors are to be elected, in accordance with the Bylaws, Charter and General Corporation Law of the State of Delaware and at each annual meeting of stockholders of the Company thereafter at which such director’s term expires; (iii) the individuals designated in accordance with Section 3 to fill the applicable vacancies on the Board, in accordance with the Bylaws, Charter, Securities Laws, General Corporation Law of the State of Delaware and the ~~execution~~ Nasdaq rules; (iv) to adhere to, implement and ~~delivery of this Agreement. The Company has complied and will comply with Rule 433 of~~ enforce the ~~Rules and Regulations~~provisions set forth in Section 4. (b) Verlinvest, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ shall comply with the requirements of the Charter and Bylaws when designating and nominating individuals as directors, in each case, to the extent such requirements are applicable to directors generally. Notwithstanding anything to the contrary set forth herein, in the event that the Board determines, within sixty (60) days after compliance with the first sentence of this Section 4(b), in good faith, after consultation with outside legal counsel, that its nomination, appointment or election of a particular director designated in accordance with Section 3, would constitute a breach of its fiduciary duties to the Company’s stockholders or does not otherwise comply with any requirements of the Charter or Bylaws, then the Board shall inform Verlinvest, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇▇, as applicable, of such determination in writing and explain in reasonable detail the basis for such determination and shall, to the fullest extent permitted by law, nominate, appoint or elect another individual designated for nomination, election or appointment to the Board by Verlinvest, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇▇, as applicable (subject in each case to this Section 4(b)). The Board and the Company ~~will advise~~ shall, to the ~~Representatives promptly~~ fullest extent permitted by law, take all necessary actions required by this Section 4 with respect to the election of ~~any proposal~~ such substitute designees to ~~amend or supplement~~ the ~~Registration Statement~~Board. (c) So long as Verlinvest beneficially owns, in the aggregate, at least ten percent (10%) of the outstanding shares of Common Stock, the ~~Prospectus~~ Company shall, upon written request, use commercially reasonable efforts to provide Verlinvest or its authorized representatives with reasonable access to visit and inspect any of the ~~General Disclosure Package~~ properties of the Company or any of its subsidiaries, including its and ~~will afford~~ their books of account, monthly management reports, operating and capital expenditure budgets, periodic information packages relating to the ~~Representatives~~ operations and cash flows of the Company and other records, and to discuss the Company’s or its subsidiaries’ affairs, finances and accounts with its and their officers, during normal business hours, following reasonable notice. (d) Notwithstanding anything to the contrary in the Charter or Bylaws of the Company, unless otherwise provided by law, for so long as Verlinvest is entitled to nominate at least two Verlinvest Designees pursuant to Section 3.01(a) of this Agreement, at any regular meeting of the Board, one Verlinvest Designee shall be present at such meeting to constitute a ~~reasonable opportunity to comment on any such proposed amendment or supplement~~quorum for the transaction of business; provided, however, ~~that~~ if the Company ~~shall not file any such proposed amendment or supplement~~ provides notice to ~~which~~ the ~~Representatives reasonably object; and~~ Verlinvest Designees at least five (5) business days before the ~~Company will also advise the Representatives promptly~~ time of the ~~filing~~ holding of ~~any such amendment or supplement and~~ a regular meeting of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its liftingBoard, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company Verlinvest Designee shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing constitute a quorum of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as Board; provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants further in connection with ~~the registration and delivery~~ any special meeting of the ~~Securities under~~ Board pursuant to Section 3.7 of the ~~Securities Act and all other fees or expenses~~ Bylaws, if the Company provides notice to the Verlinvest Designees in ~~connection~~ accordance with the ~~preparation and filing~~ notice periods set forth in Section 3.7 of the ~~Indenture~~Bylaws, ~~the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ a Verlinvest Designee shall not be required to ~~any~~ constitute a quorum of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery Board at such special meeting of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeBoard.

Appears in 2 contracts

Sources: Investor Rights Agreement (Vita Coco Company, Inc.), Investor Rights Agreement (Vita Coco Company, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (a) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a ~~reasonable opportunity~~ copy or to ~~comment~~ which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Notes and (c) file on a timely basis all reports and any ~~such proposed amendment~~ definitive proxy or ~~supplement~~information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Notes by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, the Company ~~shall~~ will not file any such ~~proposed~~ report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object; and~~ objected in writing or which is not in compliance with the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedExchange Act. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (a) not make any offer relating to the ~~Securities~~ Notes that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (c) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (d) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (diii) The Company will prepare a final term sheet ~~relating to~~ (the ~~Securities, containing only information that describes~~ “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives and attached hereto as Schedule III, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (iv) The Company will advise the Representatives promptly (a) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Notes, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Notes for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or such suspension of qualification. (v) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Notes within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act. (vi) If at any time when Notes remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form ~~consented~~ satisfactory to the Representatives, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will ~~file~~ use its best efforts to cause such ~~final term sheet~~ registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (viii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required ~~by Rule 433(d)(5)(ii~~under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish upon request to the Representatives signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith. (ix) of The Company will comply with the Securities Act and the Rules and Regulations ~~following~~ and the ~~date such final terms have been established for all classes~~ Exchange Act, and the rules and regulations of the ~~offering~~ Commission thereunder, so as to permit the completion of the ~~Securities~~distribution of the Notes as contemplated in this Agreement and the Prospectus. ~~Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Subject to the ~~use by any Underwriter~~ provisions of Section 4(i) above, if during the period in which a ~~free writing~~ prospectus ~~that contains only~~ (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing the preliminary terms of~~ under the Securities Act) is required by law to be delivered by an Underwriter or ~~their offering or (y) information that describes the final terms~~ a dealer any event shall occur as a result of ~~the Securities or their offering and that is included~~ which, in the ~~final term sheet~~ judgment of the Company ~~contemplated in the first sentence of this subsection~~ or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the ~~Underwriters is (~~Underwriters, it becomes necessary to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (x) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (b) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fxi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of ~~at least 12~~ twelve consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gxii) The Company will, for a period of five years from the Closing Date, furnish upon request to the Representatives, 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 upon request to the Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders. (xiii) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplementnot, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities beginning on ~~the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from~~ the date hereof and continuing to and including the ~~date 30 days after~~ business day following the ~~date of the Prospectus~~Closing Date, ~~not to~~ offer, sell, contract to ~~sell, pledge, grant any option to purchase, make any short sale~~ sell or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any debt securities of or guaranteed by the Company ~~that~~ which are substantially similar to the ~~Securities,~~ Notes without the Representatives’ prior written ~~consent of the Representatives~~consent. (kxiv) ~~Whether or not~~ The Company will use the ~~transactions contemplated in~~ net proceeds from the sale of the Notes pursuant to this Agreement ~~are consummated or this Agreement is terminated,~~ in the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities manner specified under the ~~Securities Act and all other fees or expenses~~ heading “Use of Proceeds” in ~~connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus,~~ the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 2 contracts

Sources: Underwriting Agreement (Health Care Reit Inc /De/), Underwriting Agreement (Health Care Reit Inc /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with you, and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ If the Company does not elect to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus) , in such number as you shall reasonably request, and, if necessary, promptly file or transmit for filing with the Commission ~~pursuant to and~~ the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ 1933 Act Regulations. (b) The Company will ~~advise~~ notify you immediately, and confirm such notice in writing, of (i) the ~~Representatives promptly~~ effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any such stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (c) ~~The Company represents and agrees that, unless it obtains~~ At any time when the ~~prior consent~~ Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the ~~Representatives~~Underwritten Securities, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ the Company ~~and the Representatives, it has not made and~~ will ~~not make~~ give you notice of its intention to file or prepare any ~~offer relating~~ amendment to the ~~Securities that would constitute an Issuer Free Writing~~ Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or ~~that would~~ otherwise ~~constitute a “free writing prospectus,” as defined~~ (including any revised prospectus which the Company proposes for use by the Underwriters in ~~Rule 405~~ connection with an offering of Underwritten Securities which differs from the ~~Rules and Regulations~~Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed ~~with the Commission. Any such free writing prospectus consented~~ pursuant to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule ~~433~~ 424(b) of the ~~Rules and~~ 1933 Act Regulations, ~~and has complied~~ or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will ~~comply~~ furnish you with copies of any such amendment or supplement or other documents proposed to be used or filed a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which you or counsel for the ~~requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~Underwriters shall reasonably object. (d) The Company will ~~prepare~~ deliver to each Underwriter a ~~final term sheet relating to the Securities, containing only information that describes the final terms~~ signed copy of the ~~Securities~~ Registration Statement as originally filed and ~~otherwise in a form consented~~ of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to by Item 12 of Form S-3 under the ~~Representatives,~~ ▇▇▇▇ ▇▇▇) as you reasonably request and will ~~file such final term sheet within the period required by Rule 433(d)(5)(ii)~~ also deliver to each Underwriter a conformed copy of the ~~Rules~~ Registration Statement as originally filed and ~~Regulations following the date such final terms have been established for all classes~~ of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use each amendment thereto (including documents incorporated by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreementreference but without exhibits). (e) IfThe Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a ~~prospectus relating to the Securities as~~ result of which it is necessary, in the opinion of counsel for the ~~Underwriters is (~~Underwriters, to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement the Prospectus ~~as then amended or supplemented would~~ 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,~~ therein not misleading in the light of the circumstances ~~under which they were made, not misleading~~existing at the time it is delivered to a purchaser, or if ~~for any other reason~~ it shall be ~~necessary during~~ necessary, in the ~~same period~~ opinion of such counsel, at any such time to amend or supplement the ~~General Disclosure Package~~ Registration Statement or ~~the Prospectus or to file under the Exchange Act any document incorporated by reference in~~ the Prospectus in order to comply with the ~~provisions~~ requirements of the ~~Securities Act, the Exchange~~ 1933 Act or the ~~Trust Indenture Act~~1933 Act Regulations, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, then the Company will promptly prepare and file with the ~~Commission, at its own expense, an~~ Commission such amendment or ~~supplement which will~~ supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or ~~an amendment which will effect~~ to make the Registration Statement and Prospectus comply with such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereofrequirements. (fg) ~~As soon~~ If applicable, the Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities and the Common Stock issuable upon conversion of the Preferred Stock, if any, for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as ~~practicable~~you may designate; and in each jurisdiction in which the Underwritten Securities and the Common Stock issuable upon conversion of the Preferred Stock, ~~but~~ if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Stock issuable upon conversion of the Preferred Stock, if any; provided, however, that the Company shall not ~~later than 16 months, after the date~~ be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (h) With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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" (gas defined in such Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will continue to elect to qualify as a "real estate investment trust" under the Code and will use its ~~commercially reasonable~~ best efforts to ~~effect~~ continue to meet the ~~listing~~ requirements to qualify as a "real estate investment trust." (j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations. (k) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Stock. (l) If the Preferred Stock is convertible into Common Stock, the Company will use its best efforts to list the shares of Common Stock issuable upon conversion of the Preferred Stock on the New York Stock Exchange or such other national exchange on which the Company's Common Stock is then listed. (m) The Company will use its best efforts to list the Underwritten Securities on the New York Stock ~~Exchange within 30 days of the Closing Date~~Exchange. (jn) ~~During~~ The Company will use the ~~period beginning~~ net proceeds received by it from the ~~date hereof and continuing to and including the date 30 days after the date~~ sale of the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ Underwritten Securities in the ~~Company that are substantially similar to~~ manner specified in the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities Prospectus under the ~~Securities Act and all other fees or expenses in connection with the preparation and filing~~ caption "Use of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeProceeds."

Appears in 2 contracts

Sources: Underwriting Agreement (United Dominion Realty Trust Inc), Underwriting Agreement (United Dominion Realty Trust Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a)~~ 3.1. The Company ~~has filed or will file each Statutory Prospectus (including~~ agrees to use commercially reasonable efforts, within the ~~Prospectus) with~~ requirements of applicable law, to ensure that the ~~Commission pursuant to~~ rights granted under this Agreement are effective and ~~in accordance with Rule 424(b) not later than~~ that the ~~second business day following~~ parties enjoy the ~~earlier of the date it is first used and the execution and delivery~~ benefits of this Agreement. ~~The Company has complied and will comply with Rule 433~~ Such actions include, without limitation, whenever required under this Agreement to effect a registration, the use of the ~~Rules~~ Company’s commercially reasonable efforts to, as expeditiously as reasonably possible and ~~Regulations.~~subject to the requirements under the applicable securities laws: 3.1.1. prepare and file a registration statement with respect to the Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Initiating Holders, keep such registration statement effective for a period of up to one hundred eighty (b180) ~~The Company will advise~~ days or, if earlier, until the ~~Representatives promptly of any proposal to amend or supplement~~ distribution contemplated in the ~~Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement~~registration statement has been completed; provided, however, that such one hundred eighty (180) day period shall be extended for a period of time equal to the ~~Company shall not~~ period the Holder refrains, at the request of an underwriter, from selling any Registrable Securities included in such registration; 3.1.2. prepare and file ~~any~~ such ~~proposed amendment or supplement~~ amendments and supplements to ~~which the Representatives reasonably object;~~ such registration statement, and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act used in connection with ~~sales by any Underwriter or dealer~~such registration statement, ~~any event occurs~~ as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall may be necessary ~~during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order~~ to comply with the ~~provisions~~ applicable securities laws in order to enable the disposition of all Registrable Securities covered by such registration statement; 3.1.3. furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the applicable securities laws, and such documents as the selling Holders may reasonably request in order to facilitate their disposition of their Registrable Securities; 3.1.4. use its commercially reasonable efforts to register and qualify the Registrable Securities ~~Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives~~ covered by such registration statement under such other securities laws of such ~~event,~~ jurisdictions as shall be reasonably requested by the selling Holders; 3.1.5. Notwithstanding Section 3.1.4 hereof and ~~if such event shall occur or if,~~ anything to the contrary in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company ~~will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of~~ shall register shares under this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith a certain jurisdiction only provided the Company shall not be required to qualify to do business ~~in any jurisdiction~~ or to file or a general consent ~~or otherwise subject itself~~ to service of process ~~or taxation~~ in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction ~~where it is not already so subject.~~and except as may be required by applicable securities laws; (i3.1.6. in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) ~~The Company will~~ of such offering; 3.1.7. use its commercially reasonable efforts to ~~effect~~ cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system on which the ~~listing of~~ Company’s securities are then listed; 3.1.8. provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and, provided that the ~~Securities~~ Company’s securities are listed on a national securities exchange or trading system in the ~~New York Stock Exchange within 30 days of~~ United States, provide a CUSIP number for all such Registrable Securities, in each case not later than the ~~Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the~~ effective date of such registration; 3.1.9. promptly make available for inspection by the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of~~selling Holders, any ~~securities of~~ underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the ~~Company that are substantially similar to the Securities~~selling Holders, ~~without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~all financial and other records, ~~the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement~~pertinent corporate documents, ~~including: (i) the fees, disbursements~~ and ~~expenses~~ properties of the Company~~’s counsel~~ , reasonably required for such purposes and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as reasonably necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection ~~with~~ therewith; 3.1.10. notify each selling Holder, promptly after the ~~registration and delivery~~ Company receives notice thereof, of the ~~Securities under the Securities Act and all other fees~~ time when such registration statement has been declared effective or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements a supplement to any prospectus forming a part of such registration statement has been filed; and 3.1.11. after such registration statement becomes effective, notify each selling Holder of any request by the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by applicable securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of exchange commission that the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeamend or supplement such registration statement or prospectus.

Appears in 2 contracts

Sources: Registration Rights Agreement (Access Industries Holdings LLC), Registration Rights Agreement (MediWound Ltd.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company hereby covenants ~~with each Underwriter as follows~~and agrees: (a) ~~The Company has filed or will file each Statutory Prospectus (including~~ as promptly as practicable, to use its commercially reasonable best efforts to cause the ~~Prospectus) with~~ Form S-4 to be declared effective and to commence the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations.Exchange Offer; (b) ~~The~~ as promptly as practicable, to (i) prepare the Solicitation Materials, in form and substance reasonably acceptable to the Purchasers, (ii) provide to the Purchasers and their representatives reasonable opportunity to review and comment on any Commission or state securities commission comments on the Solicitation Materials including the Form S-4 and any amendments thereto, and any Company ~~will advise~~ responses thereto, (iii) not file any amendments to the ~~Representatives promptly of~~ Form S-4 or any ~~proposal~~ Blue Sky filings, insofar as they relate to ~~amend or supplement~~ the ~~Registration Statement~~Exchange Offer, the ~~Prospectus~~ Restructuring or the ~~General Disclosure Package~~ Upsized Notes, without the prior consent of each of the Purchasers, which consent shall not be unreasonably withheld, (iv) use its commercially reasonable best efforts to cause the Form S-4 to become effective as promptly as practicable, (v) provide to the Purchasers and ~~will afford the Representatives~~ their representatives a reasonable opportunity to ~~comment on any~~ review and approve the final form and substance of the Solicitation Materials, such ~~proposed amendment~~ approval not to be unreasonably withheld, and (vi) disseminate the Solicitation Materials as required by law; (c) as promptly as practicable after the commencement of the Exchange Offer, and subject to the satisfaction or ~~supplement~~waiver (if permitted and required) of the conditions precedent to the Exchange Offer, to consummate the Exchange Offer, and all related transactions; (d) to qualify the Upsized Notes under the securities or Blue Sky laws of such jurisdictions as the Purchasers may reasonably request; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, be required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith ~~the Company shall~~ to register or qualify as a foreign corporation where it is not ~~be required to qualify to do business in any jurisdiction~~ now so qualified or to ~~file or consent or otherwise~~ take any action that would subject ~~itself~~ it to service of process in suits or taxation in any jurisdiction where it is not ~~already~~ so subject.; (e) to use its commercially reasonable best efforts to obtain a rating of the Upsized Notes as promptly as practicable after the date hereof by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poors ( but not as a condition to consummation of the Exchange Offer); (f) to obtain all regulatory, governmental, administrative, and other third party consents or approvals necessary for the consummation of the Exchange Offer; (g) to cause the Exchange Offer and all other transactions contemplated by this Commitment Letter to comply with all applicable Federal and state securities laws; (h) that it shall not waive any conditions to the Exchange Offer set forth in the Solicitation Materials without the prior written consent of each of the Purchasers; (i) ~~The Company will use its commercially reasonable efforts~~ that it shall provide to ~~effect~~ each Purchaser such information and access to management as the ~~listing of~~ Purchasers may reasonably request in each case to the ~~Securities on~~ extent such Purchaser has entered into a confidentiality agreement in form and substance reasonably satisfactory to the ~~New York Stock Exchange within 30 days of the Closing Date.~~Companies; (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that ~~are substantially similar~~ it shall provide notice to the ~~Securities~~Purchasers of any breach of this Commitment Letter and seek to cure the same, in each case as promptly as practicable; (k) that it shall not, without the prior written consent of each of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, includingPurchasers: (i) initiate any exchange offer for the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the IndentureConvertible Notes, the ~~Registration Statement, any preliminary prospectus~~▇▇▇▇▇▇▇ Bonds, the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of~~ 2005 Notes or the ~~foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified,~~ Trust Securities or (ii) ~~all costs~~ otherwise seek to restructure or recapitalize, in each case except through the Restructuring; (I) that it shall not object to, nor otherwise commence any proceeding to oppose, the Restructuring and ~~expenses related~~ shall not take any action that would be expected to be inconsistent with or unreasonably delay the consummation of, the Restructuring; and (m) that during the effectiveness of this Commitment Letter, without the prior consent of each of the Purchasers and other than in accordance with the terms of the Restructuring, it shall not directly or indirectly, and shall cause each of its direct and indirect subsidiaries not to directly or indirectly, engage in, agree to, or consummate any transaction outside the ordinary course of its business, including without limitation, any merger, acquisition, other business combination, security issuance, or sale or lease of assets, outside the ordinary course of business; provided, that this paragraph 6(m) shall not apply to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities transactions identified on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeSchedule 3 hereto.

Appears in 2 contracts

Sources: Commitment Letter (Foster Wheeler LTD), Commitment Letter (Foster Wheeler Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it~~ Rules and Regulations a Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A or 430C of the Rules and Regulations and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute ~~an Issuer Free Writing Prospectus, or that would otherwise constitute~~ a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the ~~Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus~~Commission under Rule 433 under the Act.” (c) The Company ~~represents that it has treated and agrees that it~~ will ~~treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433~~ advise the Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the ~~Rules and Regulations~~Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and ~~has complied and will comply with the requirements of Rules 164 and 433~~ (D) of the ~~Rules and Regulations applicable to~~ issuance by the Commission of any ~~Permitted Free Writing~~ stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, ~~including timely Commission filing where required~~or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its reasonable best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, ~~legending and record keeping~~if issued. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ four signed copies of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities for sale~~ Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) Except for securities issued in the Private Placement (as defined below), the Company hereby agrees that until the Company consummates a Business Combination, it shall not issue any shares of Common Stock or any options or other securities convertible into Common Stock, or any shares of preferred stock which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination. Notwithstanding the foregoing, if (1) during the last 17 days of the restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representative waives, in writing, such extension. (k) The Company will use its ~~commercially reasonable~~ best efforts to effect and maintain the listing of the Securities on the ~~New York~~ American Stock Exchange ~~within 30 days of the Closing Date~~(“AMEX”). (jl) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the ~~Prospectus~~Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (m) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants, as applicable. (n) The Company will not take, directly or indirectly, any action that constitutes or might reasonably be expected to ~~offer~~constitute, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ the stabilization or ~~otherwise dispose, except as provided hereunder of,~~ manipulation of the price of any securities of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Company. (ko) ~~Whether~~ The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Units are offered in connection with the Directed Unit Program. (p) For a period of four years from the Effective Date, or ~~not~~ such earlier time upon which the ~~transactions contemplated in this Agreement are consummated or this Agreement~~ Company is ~~terminated~~required to be liquidated, the Company will ~~pay or cause~~ use its reasonable best efforts to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (q) For a period of four years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture~~Company’s Form 10-Q quarterly report. (r) The Company shall not consummate a Business Combination with any Initial Stockholder, or officer or director of the Company, or any entity which is affiliated with any Initial Stockholder or officer or director of the Company without first obtaining an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s stockholders from a financial point of view. Except as described in the Registration Statement, ~~any preliminary prospectus,~~ General Disclosure Package and the Prospectus, the Company shall not pay any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Stockholder or any of their affiliates or family members any fees or compensation from the ~~foregoing~~Company, ~~including all printing costs associated therewith, and the mailing and delivering of copies thereof~~ for services rendered to the ~~Underwriters and dealers~~Company prior to, or in connection with, the ~~quantities hereinabove specified~~consummation of an initial Business Combination; provided that the Initial Stockholders shall be entitled to reimbursement from the Company, ~~(ii) all costs and expenses related~~ subject to approval by the ~~transfer and delivery~~ Board of Directors of the ~~Securities to the Underwriters~~Company, ~~including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services~~ for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and onetheir reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (s) The Company will take all necessary actions to ensure that, upon and at all times after the ~~listing~~ effectiveness of the ~~Securities on~~ Registration Statement, it will be in compliance with (i) all provisions of the ~~New York Stock Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect and applicable to it and shall take such steps as are necessary to ensure that it will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the effectiveness of such provisions to the extent they are applicable to the Company and (~~viii~~ii) ~~all other costs and expenses incident~~ the requirements of the American Stock Exchange’s AMEX Company Guide. (t) For a period of four years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the ~~performance~~ Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~obligations~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a confidentiality agreement reasonably satisfactory to the Company. (u) For a period equal to four years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants, under the Act. (v) In the event any person or entity (excluding attorneys, accountants and similar service providers that are not affiliated or associated with the NASD and are not brokers or finders) is engaged, in writing, to assist the issuer in finding or evaluating a merger candidate, the Company will provide the following to the NASD and the Representative prior to consummation of an initial Business Combination: (i) copies of agreements governing said services (which ~~provision~~ details or agreements may be appropriately redacted to account for privilege or confidentiality concerns), and (ii) a justification as to why the person or entity providing the merger and acquisition services should not be considered an “underwriter or related person” with respect to the Company’s initial public offering as such term is ~~not otherwise~~ defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the proxy statement which the Company will file for purposes of soliciting stockholder approval for the initial Business Combination. (w) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (x) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. In addition, upon receipt of the proceeds from the sale of any Option Units after the Closing Date, the Company shall promptly file a second or amended Current Report on Form 8-K with the Commission, which Report shall provide updated financial information to reflect the receipt of such additional proceeds. Upon the earlier to occur of (i) the expiration or termination of the Over-allotment Option and (ii) the exercise in full of the Over-allotment Option, the Company shall, subject to having filed the Current Report(s) on Form 8-K pursuant to the previous paragraph, promptly issue a press release announcing that separate trading of the Warrants and Common Stock will begin on the AMEX. (y) The Company shall advise the NASD if it is ~~understood~~aware that any 5% or greater securityholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of an NASD member participating in the distribution of the Securities. (z) The Company shall, ~~however~~as set forth in the Trust Agreement and disclosed in the Prospectus, ~~that except as provided~~ cause the proceeds of the offering to be held in ~~this Section, Section 6 entitled~~ the Trust Account to be invested only in “~~Indemnity and Contribution,~~government securities” ~~and~~ within the ~~last paragraph~~ meaning of Section ~~8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any~~ 2(a)(16) of the ~~Securities by them and any advertising expenses connected with any offers they may make.~~1940 Act

Appears in 2 contracts

Sources: Underwriting Agreement (Information Services Group Inc.), Underwriting Agreement (Information Services Group Inc.)

Covenants of the Company. ~~In further consideration~~ 1. The Company will comply in all respects with the terms and conditions of the ~~agreements~~ Securities Act, the Exchange Act, Regulation A and applicable state securities laws with respect to the Offering and the sale of the ~~Underwriters herein contained, the Company covenants with each Underwriter as follows:~~Securities. (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement2. The Company has ~~complied and~~ delivered, or will ~~comply with Rule 433~~ as promptly as practicable deliver, to the Placement Agent materially complete conformed copies of the ~~Rules~~ Offering Statement and ~~Regulations.~~ of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Offering Statement (~~b) The~~ without exhibits), the Preliminary Offering Circular and the Offering Circular, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will ~~advise~~ distribute, prior to each Closing Date, any offering material in connection with the ~~Representatives promptly~~ offering and sale of ~~any proposal~~ the Securities pursuant to ~~amend or supplement~~ the ~~Registration~~ Placement other than the Offering Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; Preliminary Offering Circular and the ~~Company will also advise the Representatives promptly~~ Offering Circular, copies of the ~~filing of~~ documents incorporated by reference therein and any ~~such amendment~~ other materials permitted by the Securities Act. 3. Each Subscription Agreement as in effect on the date hereof may not be amended or ~~supplement and~~ waived without the prior written consent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedPlacement Agent. ~~(c)~~ 4. The Company ~~represents and agrees that~~covenants that it will not, unless it obtains the prior written consent of the ~~Representatives~~Placement Agent, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not~~ make any offer relating to the Securities that would constitute ~~an Issuer~~ a Company Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of the ~~Rules and Regulations,~~ Securities Act) required to be filed by the Company with the ~~Commission~~Commission or retained by the Company under Rule 433 of the Securities Act. ~~Any~~ In the event that the Placement Agent expressly consents in writing to any such free writing prospectus ~~consented to by the Company and the Representatives is hereinafter referred to as~~ (a “Permitted Free Writing Prospectus~~.” The~~ ”), the Company ~~represents~~ covenants that it ~~has treated and agrees that it will~~ shall (i) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Company Free Writing Prospectus, and ~~has complied and will~~ (ii) comply with the requirements of ~~Rules~~ Rule 164 and 433 of the ~~Rules and Regulations~~ Securities Act applicable to ~~any~~ such Permitted Free Writing Prospectus, including in respect of timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request5. The Company will ~~pay the expenses of printing~~ maintain, at its expense, a registrar and ~~distributing to the Underwriters all such documents. (h) The Company will arrange~~ transfer agent for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectCommon Stock. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Placement Agency Agreement (Janover Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with the Representatives and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ In respect to each offering of Underwritten Securities, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as the ~~Prospectus~~Representatives shall reasonably request. (b) If, at the time the Prospectus Supplement was filed with the Commission pursuant to ~~and in accordance with~~ Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then not later than the second business day following the ~~earlier of the date it is first used and the~~ execution and delivery of ~~this~~ the Terms Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the 1933 Act Regulations, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. If required, the Company will prepare and file or transmit for filing a Rule 462(b) Registration Statement by 10:00 p.m. on the date of execution of the Terms Agreement. ~~The~~ If a Rule 462(b) Registration Statement is filed, the Company ~~has complied and will comply with~~ shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule ~~433~~ 111 of the ~~Rules and~~ 1933 Act Regulations. (bc) The Company will ~~advise~~ notify the Representatives ~~promptly~~ immediately, and confirm such notice in writing, of (i) the effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any such stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible its lifting, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingmoment. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at At any time when ~~a prospectus relating to~~ the ~~Securities as in the opinion of counsel for the Underwriters~~ Prospectus is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities~~ 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any ~~Underwriter~~ such amendment or ~~dealer~~supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object. (e) The Company will furnish to each 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 (as amended or supplemented) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. (f) If any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~General Disclosure Package~~ reasonable opinion of counsel for the Underwriters, 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 delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as ~~then~~ so amended or ~~supplemented would~~ supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the time it is delivered to a purchaser, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, and the Company ~~promptly~~ will ~~notify~~ furnish to the ~~Representatives~~ Underwriters a reasonable number of copies of such ~~event, and if such event shall occur~~ amendment or ifsupplement. (g) The Company will endeavor, in ~~the opinion of counsel for~~ cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to (i) qualify as a foreign corporation in a jurisdiction it is ~~necessary at~~ not so qualified, (ii) file any ~~time~~ general consent to ~~amend~~ service of process or (iii) take any actions that would subject it to income taxation in any such jurisdiction. In each jurisdiction in which the ~~General Disclosure Package or the Prospectus to comply with the~~ Underwritten Securities ~~Act~~have been so qualified, the Company will ~~promptly prepare~~ file such statements and ~~file with~~ reports as may be required by the ~~Commission, at its own expense, an amendment or supplement which will correct~~ laws of such ~~statement or omission or an amendment which will~~ jurisdiction to continue such qualification in effect ~~such compliance. Neither~~ for so long as may be required for the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ distribution of the ~~conditions set forth in Section 5 hereof~~Underwritten Securities. (fh) ~~As soon as practicable, but not later than 16 months, after the date~~ With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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” (gas defined in said Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use ~~its commercially reasonable efforts to effect~~ the ~~listing~~ net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under “Use of Proceeds.” (j) 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 Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (k) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, to the extent the Preferred Stock, Common Stock Warrants or Debt Securities are listed on the New York Stock ~~Exchange within 30 days~~ Exchange, the Company will use its best efforts to maintain the listing of any such Underwritten Securities listed on the ~~Closing Date~~New York Stock Exchange. (jl) In respect to each offering of Debt Securities, the Company will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee. (m) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation (“S&P”), ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable. (n) During the period ~~beginning from~~ specified in the ~~date hereof and continuing to and including the date 30 days after the date of the Prospectus~~applicable Prospectus Supplement, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ the Company ~~that are substantially similar to the Securities~~and ▇▇▇▇ O.P. will not, without the prior written consent of the Representatives, or any one Representative, if so provided in the Prospectus Supplement, (i) directly or indirectly, sell, offer to sell, transfer, hypothecate, grant any option for the sale of, or otherwise dispose of, (a) any securities of the same class or series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement) or any security convertible into or exchangeable for such Underwritten Securities and (b) if such Prospectus Supplement relates to Common Stock Warrants or Debt Securities or Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or excercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock, whether any such transaction is to be settled by delivery of Common Stock, or such other securities, in cash or otherwise. This transfer restriction does not apply to (i) grants of options, and the issuance of shares in respect of such options; (ii) the issuance of shares and units pursuant to an employee stock option or benefit plan, a dividend reinvestment plan or stock purchase plan (except for optional waiver components, if any); (iii) the issuance of Common Stock on the exchange of Units; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property. (ko) ~~Whether or not~~ With respect to the ~~transactions contemplated in this Agreement~~ Common Stock issuable on exercise of Common Stock Warrants and the conversion of any Debt Securities and Preferred Stock if such securities are ~~consummated or this Agreement is terminated~~convertible into Common Stock, the Company will ~~pay~~ reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon exercise of the Common Stock Warrants and conversion of the Debt Securities or ~~cause to be paid all expenses incident~~ Preferred Stock. (p) With respect to the ~~performance~~ Common Stock issuable on exercise of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel~~ Common Stock Warrants and the ~~Company’s accountants in connection with the registration~~ conversion of any Debt Securities and ~~delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture~~Preferred Stock if such securities are convertible into Common Stock, the ~~Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Company will use its best efforts to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities list such Common Stock on the New York Stock ~~Exchange and~~ Exchange. (~~viii~~q) ~~all other costs and expenses incident~~ The Company will use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code. (r) During the period from the Closing Time until five years after the Closing Time, the Company will deliver to the ~~performance~~ Representatives, promptly upon their becoming available, copies of ~~the obligations~~ all current, regular and periodic reports of the Company ~~hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ mailed to its stockholders or filed with any securities exchange or with the ~~last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ Commission or any governmental authority succeeding to any of the ~~Securities by them and any advertising expenses connected with any offers they may make~~Commission’s functions.

Appears in 1 contract

Sources: Underwriting Agreement (Carramerica Realty Corp)

Covenants of the Company. The Company covenants and agrees with the Managing Broker-Dealer that: 2.1 It will prepare and file all amendments to the Offering Statement (or the equivalent, if a state securities commission requires a different format). In ~~further consideration~~ addition, it will furnish the Managing Broker-Dealer, at no expense to the Managing Broker-Dealer, with such number of printed copies of the ~~agreements of~~ Offering Circular, including all amendments thereto, as the ~~Underwriters herein contained,~~ Managing Broker-Dealer may reasonably request. It will similarly furnish to the ~~Company covenants~~ Managing Broker-Dealer and others designated by the Managing Broker-Dealer as many copies as the Managing Broker-Dealer may reasonably request in connection with ~~each Underwriter as follows:~~ the Offering of: (a) ~~The Company has filed~~ the offering circular, in preliminary and final form, and every form of supplemental or ~~will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to~~ amended offering circular; and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) ~~The Company~~ this Agreement. 2.2 It will ~~advise~~ prepare and file with the ~~Representatives promptly of any proposal~~ appropriate regulatory authorities, as may be required, by law or regulation, at no expense to ~~amend or supplement~~ the ~~Registration Statement~~Managing Broker-Dealer, the ~~Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement~~Authorized Sales Materials; provided, ~~however~~however that all filings of any kind with FINRA, including filings under FINRA Rule 5110, shall be the sole responsibility of the Managing Broker-Dealer; provided, further, that the Company shall ~~not file~~ pay all filing fees associated with any such ~~proposed~~ FINRA filings. In addition, it will furnish the Managing Broker-Dealer, at no expense to the Managing Broker-Dealer, with such number of printed copies of Authorized Sales Materials as the Managing Broker-Dealer may reasonably request. 2.3 If at any time the SEC shall issue any stop order suspending the qualification of the Offering Statement, and to the extent the Company determines that such action is in the best interest of its members, it will use its reasonable best efforts to obtain the lifting of such order at the earliest possible time. 2.4 It will not use any Offering Circular or sales materials for the Offering which have not been approved by the Managing Broker-Dealer prior to use, and shall make such modifications, amendments or supplements to the Offering Circular and Authorized Sales Materials as reasonably requested by the Managing Broker-Dealer to eliminate any materially inaccurate or misleading statement contained therein, but no failure to make any objection or to request any modification, amendment or supplement ~~to which~~ shall constitute any representation by the ~~Representatives reasonably object; and~~ Managing Broker-Dealer regarding the ~~Company will also advise the Representatives promptly~~ accuracy or completeness of the ~~filing of any such amendment~~ Offering Circular or ~~supplement and of the institution~~ sales materials prepared by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the CommissionCompany. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, If at any time when ~~a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ an Offering Circular is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the Securities Act ~~in connection with sales by any Underwriter or dealer,~~ any event occurs as a result of ~~which~~ which, in the ~~General Disclosure Package~~ opinion of either the Company or the ~~Prospectus as then amended~~ Managing Broker-Dealer, the Offering Circular or ~~supplemented~~ Authorized Sales Materials would include an untrue statement of a material fact or or, in view of the circumstances under which they were made, omit to state any material fact necessary to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company will promptly ~~prepare~~ notify the Managing Broker-Dealer thereof (unless the information shall have been received from the Managing Broker-Dealer) and ~~file with~~ will affect the ~~Commission, at its own expense,~~ preparation of an ~~amendment~~ amended or ~~supplement~~ supplemental Offering Circular and Authorized Sales Materials which will correct such statement or omission and file such amended or ~~an amendment which will effect such compliance.~~ supplemental Offering Circular and Authorized Sales Materials as required under federal law. 2.5 Neither the ~~Representatives consent to,~~ Company nor ~~the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of~~ any of its affiliates shall make any written or oral representations or statements to investors that contradict or are inconsistent with the ~~conditions set forth~~ statements made in ~~Section 5 hereof~~the Offering Circular or the Authorized Sales Material, as then amended or supplemented. 2.6 The Company will, as long as any Shares placed by the Managing Broker-Dealer or any Dealer remain held by investors purchasing them in the Offering, furnish directly to the Managing Broker-Dealer one (f1) ~~As soon as practicable, but not later than 16 months, after~~ copy of each report furnished to investors in the ~~date of this Agreement,~~ Shares at the ~~Company will make generally available~~ time such report is furnished to ~~its securityholders an earning statement covering a period of at least 12 months beginning after~~ the ~~date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations~~investors. ~~(g)~~ 2.7 The Company will ~~furnish~~ not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to ~~the Representatives copies~~ cause or result in, or which will constitute, stabilization of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification price of the ~~Securities for sale under~~ Shares to facilitate the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the ~~Securities by them~~ Shares. 2.8 Each of the representations and ~~any advertising expenses connected~~ warranties contained in this Agreement are true and correct and the Company will comply with ~~any offers they may make~~each covenant and agreement contained in this Agreement.

Appears in 1 contract

Sources: Managing Broker Dealer Agreement (HC Government Realty Trust, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) under the Act a Prospectus in a form approved by the Representative (such approval not ~~later than~~ to be unreasonably withheld or delayed) containing information previously omitted at the ~~second business day following the earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in the Underwriters or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriters that such Underwriters otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Underwriters promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (iii) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (iv) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will ~~prepare~~ cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a ~~final term sheet relating~~ foreign corporation or to ~~the Securities, containing only information that describes the final terms~~ file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or to become liable for taxes in any jurisdiction where it is not so liable as of the ~~Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the~~ date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company ~~also consents~~ will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares. (e) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Issuer Free Writing Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the ~~use by any Underwriter~~ Underwriters such number of ~~a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ copies of the ~~Securities or their offering or~~ Registration Statement (~~y) information that describes the final terms~~ including such number of copies of the ~~Securities or their offering~~ exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and ~~that is included in~~ of all amendments thereto, as the ~~final term sheet of~~ Underwriters may reasonably request. (f) The Company will comply with the ~~Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any Underwriter~~ an underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsapplicable law. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise the Underwriters in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ list the Shares on the NASDAQ Global Market and maintain the listing of the ~~Securities~~ Shares on the ~~New York Stock Exchange within 30 days~~ NASDAQ Global Market. (k) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus. (l) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (o) Prior to the Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business, operations or prospects, or the offering of the Shares, without the prior written consent of the Representative, unless in the reasonable judgment of the Company and its counsel, and after notification to the Underwriters, such press release or communication is required by law (including without limitation the Act, the Rules and Regulations, the Exchange Act, and the rules and regulations of the Commission thereunder) or by NASDAQ Global Market rules, in which case the Company shall use its reasonable best efforts to allow the Underwriters reasonable time to comment on such release or other communication in advance of such issuance. (jp) ~~During~~ The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with the ~~period beginning from~~ execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (other than as set forth in this Agreement). (q) The Company has caused each officer and director of the Company listed on Schedule V to furnish to you, on or prior to the date ~~hereof and continuing to and including~~ of this Agreement, a letter or letters, substantially in the ~~date 30~~ form attached hereto as Exhibit A (the “Lockup Agreement”). (r) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. Notwithstanding the ~~Representatives.~~ foregoing, if (ki) ~~Whether or not~~ during the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated~~last 17 days of the 60-day restricted period, the Company ~~will pay~~ issues an earnings release or ~~cause to be paid all expenses incident~~ material news or a material event relating to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees Company occurs; or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) ~~all costs and expenses related~~ prior to the ~~transfer and delivery~~ expiration of the ~~Securities~~ 60-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 60-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the ~~Underwriters~~Company, ~~including any transfer or other taxes payable thereon~~as the case may be, ~~(iii) the cost of printing certificates representing the Securities~~unless O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. waives, ~~(iv) any fees charged by securities rating services for rating the Securities~~in writing, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makesuch extension.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Stereotaxis, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the Placement Agent that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) under the Act a Prospectus in a form approved by the Placement Agent (such approval not ~~later than~~ to be unreasonably withheld or delayed) containing information previously omitted at the ~~second business day following the earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Placement Agent shall not previously have been advised and furnished with a copy or to which the Placement Agent shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Securities by the Placement Agent. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the ~~Representatives is hereinafter referred~~ Commission under Rule 433 under the Act unless the Placement Agent approves its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Placement Agent hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule I hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in the Placement Agent or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Placement Agent that such Placement Agent otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the Placement Agent promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any comments from the Commission, (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will ~~prepare a final term sheet relating~~ cooperate with the Placement Agent in endeavoring to ~~the Securities, containing only information that describes the final terms of~~ qualify the Securities for sale under the securities laws of such jurisdictions as the Placement Agent may reasonably have designated in writing and ~~otherwise in a form consented to by the Representatives~~will make such applications, file such documents, and ~~will~~ furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such ~~final term sheet within~~ a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established~~ Placement Agent may reasonably request for ~~all classes of the offering~~ distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Placement Agent, from time to time, as many copies of any Preliminary Prospectus as the Placement Agent may reasonably request. ~~Any such final term sheet is an~~ The Company will deliver to, or upon the order of, the Placement Agent, from time to time, as many copies of any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Placement Agent may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Placement Agent during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Placement Agent may reasonably request. The Company will deliver to the ~~use by any Underwriter~~ Placement Agent such number of ~~a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ copies of the ~~Securities or their offering or~~ Registration Statement (~~y) information that describes the final terms~~ including such number of copies of the ~~Securities or their offering~~ exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and ~~that is included in~~ of all amendments thereto, as the ~~final term sheet of~~ Placement Agent may reasonably request. (f) The Company will comply with the ~~Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing prospectus referred~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to ~~in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes~~ permit the completion of ~~this Agreement. (e) If, at any time when a prospectus relating to~~ the distribution of the Securities as contemplated in this Agreement and the ~~opinion of counsel for~~ Prospectus. If during the ~~Underwriters~~ period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any Underwriter~~ an underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Placement Agent, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Placement Agent, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Placement Agent an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsapplicable law. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise the Placement Agent in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Placement Agent, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ list the Shares and Warrant Shares on the NASDAQ Global Market and maintain the listing of the ~~Securities~~ Shares and Warrant Shares on the ~~New York Stock Exchange within 30 days of the Closing Date~~NASDAQ Global Market. (jk) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus. (l) The Company shall not invest, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ or otherwise ~~dispose~~use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (m) The Company will maintain a transfer agent and, ~~except as provided hereunder of~~if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (o) Prior to the Closing Date, the Company ~~that are substantially similar~~ will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business, operations or prospects, or the offering of the Securities, without the prior written consent of the ~~Representatives~~Placement Agent, unless in the reasonable judgment of the Company and its counsel, and after notification to the Placement Agent, such press release or communication is required by law or by NASDAQ Global Market rules, in which case the Company shall use its reasonable best efforts to allow the Placement Agent reasonable time to comment on such release or other communication in advance of such issuance. (kp) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay~~ not incur any liability for any finder’s or ~~cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company~~broker’s ~~counsel and the Company~~fee or agent’s ~~accountants~~ commission in connection with the ~~registration~~ execution and delivery of this Agreement or the ~~Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing~~ consummation of the ~~Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus~~ transactions contemplated hereby (other than as set forth in this Agreement). (q) The Company shall reserve and ~~amendments and supplements to any~~ keep available at all times a sufficient number of ~~the foregoing, including all printing costs associated therewith, and the mailing and delivering~~ shares of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel Common Stock for the ~~Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses~~ purpose of ~~officers and employees of~~ enabling the Company ~~for any “road show” undertaken in connection with~~ to issue the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeWarrant Shares.

Appears in 1 contract

Sources: Placement Agency Agreement (Stereotaxis, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Act a Prospectus in a form approved by the Representatives (such approval not ~~later than~~ to be unreasonably withheld or delayed) containing information previously omitted at the ~~second business day following the earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act, as applicable, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Shares shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (cd) ~~The~~ If immediately prior to December 1, 2008 (the “Renewal Deadline”), the Underwriters shall notify the Company ~~represents~~ in writing that any of the Shares remain unsold by the Underwriters, the Company will, as promptly as practicable following, the Renewal Deadline file, if it has not already done so and ~~agrees that~~is eligible to do so, ~~unless~~ a new automatic shelf registration statement relating to the Shares, in a form reasonably satisfactory to the Representatives. If the Company is no longer eligible to file a shelf registration statement, the Company will, prior to the Renewal Deadline, if it ~~obtains~~ has not already done so, file a new shelf registration statement relating to the ~~prior consent of~~ Shares, in a form reasonably satisfactory to the Representatives, and ~~each Underwriter represents~~ will use its commercially reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action reasonably necessary or appropriate to permit the public offering and ~~agrees that, unless it obtains the prior consent~~ sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new shelf registration statement or such new shelf registration statement, as the case may be. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, ~~it has not made and will not make~~ from time to time, as many copies of any ~~offer relating to the Securities that would constitute an~~ Preliminary Prospectus or any Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as ~~an “issuer free writing prospectus,”~~ the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as ~~defined~~ many copies of the Prospectus in ~~Rule 433~~ final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and ~~has complied~~ the Exchange Act, and ~~will comply with~~ the ~~requirements of Rules 164~~ rules and ~~433~~ regulations of the ~~Rules and Regulations applicable~~ Commission thereunder, so as to ~~any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to~~ permit the ~~Securities, containing only information that describes the final terms~~ completion of the ~~Securities~~ distribution of the Shares as contemplated in this Agreement and ~~otherwise in a form consented to by~~ the ~~Representatives, and will file such final term sheet within~~ Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectlaw. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities on~~ Registration Statement (as defined in Rule 158(c) under the ~~New York Stock Exchange within 30 days~~ Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Closing Date~~Act and the Rule 158 under the Act and will advise you in writing when such statement has been so made available. (j) ~~During~~ Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning from~~ covered by the ~~date hereof~~ most recent financial statements appearing in the Registration Statement and ~~continuing to and including~~ the ~~date 30~~ Prospectus. (k) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the Representatives. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 90 day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waives, in writing, such extension. (kl) ~~Whether or not~~ The Company will use its best efforts to list the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ Shares for quotation on the Nasdaq National Market and maintain the listing of the Shares on the Nasdaq National Market. (m) The Company has caused each officer and director of the Company ~~will pay~~ to furnish to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of ~~its obligations under~~ this Agreement, ~~including:~~ a letter or letters, substantially in the form attached hereto as Exhibit A (ithe “Lockup Agreement”). (n) The Company shall apply the ~~fees, disbursements and expenses~~ net proceeds of its sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ General Disclosure Package and the Prospectus. (o) The Company shall not invest, ~~any Issuer Free Writing Prospectus and amendments and supplements to~~ or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Stock. (q) 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Mobile Mini Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations, and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (4) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) The Company will ~~prepare a final term sheet~~ advise the Representatives promptly (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Securities~~Shares shall have become effective, ~~containing only information that describes~~ or any supplement to the ~~final terms of the Securities and otherwise in a form consented to by the Representatives~~Prospectus shall have been filed, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(ii) of the ~~Rules and Regulations following~~ receipt of any comments from the ~~date such final terms have been established for all classes~~ Commission, (iii) of any request of the ~~offering~~ Commission for amendment of the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to~~ Registration Statement or the ~~use by any Underwriter~~ filing of a ~~free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities~~ new registration statement or ~~their offering~~ any amendment or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred supplement to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its commercially reasonable efforts to prevent the issuance of any such order and to obtain as ~~then~~ soon as possible the lifting thereof, if issued. (d) If at any time when Shares remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Representatives, (iii) use its commercially reasonable efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (e) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (f) The Company agrees to pay the required filing fees to the Commission relating to the Shares within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (g) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (h) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or ~~supplemented would include~~ supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (i) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an ~~untrue statement~~ Underwriter or dealer, any event shall occur as a result of ~~a material fact~~ which, in the judgment of the Company or ~~omit~~ in the reasonable opinion of the Underwriters, it becomes necessary to ~~state any material fact necessary~~ amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (j) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fk) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months ~~beginning~~ after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Securities~~ Act and the Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gl) ~~The Company will furnish to the Representatives copies~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc., except for (i) grants of Stock Options or issuances of Common Stock under any ~~Issuer Free Writing Prospectus and all amendments and supplements to such documents~~of the Company’s equity incentive plans, including, without limitation, any deferred compensation plans, or employee stock purchase plans that are in ~~each case prior to 3:00 P.M. New York City time on the business day next succeeding~~ effect as of the date of this ~~Agreement~~ Agreement, (ii) issuances of Common Stock upon the exercise of Stock Options outstanding on the date of this Agreement, or ~~as soon as possible~~the conversion of the Company’s currently outstanding 3- 3/4% Convertible Senior Subordinated Notes due 2012, or (iii) issuances of Common Stock having an aggregate fair market value of up to $50,000,000 for all or substantially all of the equity or assets of a company (or of multiple companies) in connection with ~~respect to any amendment~~ mergers or ~~supplement~~acquisitions. Notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period ~~mentioned~~ following the last day of the 90-day restricted period, then in ~~Section 4(e) above and in such quantities~~ each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the ~~Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all~~ case may be, unless Deutsche Bank Securities Inc. waives, in writing, such ~~documents~~extension. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (im) The Company will use its commercially reasonable efforts to ~~effect~~ list the ~~listing~~ Shares, subject to notice of ~~the Securities~~ issuance, on the New York Stock ~~Exchange within 30 days~~ Exchange, and effect and maintain the listing of the Shares on the NYSE. (n) The Company will cause each executive officer and director of the Company to furnish to you, on or prior to the Closing Date, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lock-up Agreement”). (jo) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the ~~Prospectus~~Shares as set forth in the Registration Statement, General Disclosure Package and 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. (p) The Company shall not ~~to offer~~invest, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ or otherwise ~~dispose~~use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (q) The Company will maintain a transfer agent and, ~~except as provided hereunder of~~if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (r) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Company. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Underwriting Agreement (Fti Consulting Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each Underwriter as follows: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Securities Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, and (ii) not file any amendment to the Registration Statement or any documents incorporated by reference therein or distribute an amendment or supplement to the Time of Sale Prospectus or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used~~ not in compliance with the rules and ~~the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433~~ regulations of the ~~Rules and Regulations~~Securities Act. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (dc) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (i) when any post-effective amendment to the ~~Securities~~Registration Statement shall have become effective, ~~containing only information~~ (ii) of receipt of any comments from the Commission, (iii) when any supplement to the Prospectus, any Issuer Free Writing Prospectus, or any amendment to the Prospectus has been filed, (iv) of any request of the Commission for amendment of the Registration Statement or for supplement to the Time of Sale Prospectus or the Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, or of the institution of any proceedings for that ~~describes the final terms~~ purpose or pursuant to Section 8A of the Securities ~~and otherwise in a form consented to by the Representatives~~Act, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(vi) of the ~~Rules and Regulations following~~ occurrence of any event or development within the ~~date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing~~ Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only~~ Delivery Period (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined ~~in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i~~below) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the ~~General Disclosure Package~~ Prospectus, the Time of Sale Prospectus or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the Time of Sale Prospectus or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order, suspension or qualification referred to in clause (v) or (vii) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (e) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) (the “Prospectus Delivery Period”) is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (f) The Company will comply with the Securities Act and the rules and regulations of the Commission promulgated thereunder, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the ~~General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the~~ Prospectus in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ prepare and file with the ~~Commission~~Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at ~~its own expense~~a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Time of Sale Prospectus to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the Time of Sale Prospectus so that the Time of Sale Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Time of Sale Prospectus will comply with law. (fh) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules~~ Securities Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gi) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ the Time of Sale Prospectus and the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) ~~During the~~ No offering, pledge, sale, contract to sell, 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 ~~beginning from the date hereof and continuing to and including the date 30~~ of 60 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, provided, however, that the ~~Representatives.~~ Company may (ki) ~~Whether or not~~ effect the transactions contemplated ~~in this Agreement are consummated or this Agreement is terminated~~hereby, ~~the Company will pay or cause to be paid all expenses incident~~ (ii) issue shares of Common Stock pursuant to the ~~performance~~ exercise of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ warrants outstanding as of the ~~Company’s counsel~~ date hereof and ~~the Company’s accountants~~ described in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ the Time of Sale Prospectus and the Prospectus, ~~any Issuer Free Writing Prospectus and amendments and supplements to any~~ but only if the holders of ~~the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to~~ such shares or warrants agree in writing with the Underwriters ~~and dealers~~not to sell, in offer, dispose of or otherwise transfer any such shares or warrants during the ~~quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon~~60-day restricted period, (iii) issue shares of its Common Stock or options to purchase shares of Common Stock, or issue shares of Common Stock upon exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the ~~cost~~ Registration Statement, the Time of ~~printing certificates representing~~ Sale Prospectus and the ~~Securities~~Prospectus, but only if the holders of such shares or options agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such shares or options during the 60-day restricted period and (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.issue

Appears in 1 contract

Sources: Underwriting Agreement (Syndax Pharmaceuticals Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company (i) has filed or the Statutory Prospectus and will file ~~each Statutory Prospectus (including~~ the Prospectus) , in a form approved by the Representatives, with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it such Statutory Prospectus or Prospectus is first used ~~and~~ or the execution and delivery of this Agreement~~. The Company has complied~~ , (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and ~~will comply~~ furnished with ~~Rule 433 of~~ a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record keeping, and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) The Company will ~~prepare a final term sheet relating~~ advise the Representatives as promptly as practicable (A) of receipt of any comments from the Commission, (B) when any supplement to the ~~Securities~~Prospectus, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, (C) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, (D) of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eE) ~~If, at any time when a prospectus relating to~~ of the ~~Securities as in the opinion~~ occurrence of ~~counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (F) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any order referred to in clause (D) or (F) of this paragraph and to obtain as soon as practicable the lifting thereof, if issued. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (e) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will prepare and file with the Commission an appropriate supplement to the Prospectus so that the Prospectus as so 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. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement or Preliminary Prospectus then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company as promptly as practicable will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, an earnings statement (which need not be audited) satisfying the requirements of Section 11(a) of the ~~Securities for sale~~ Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) ~~The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date~~[Removed and Reserved.] (j) ~~During~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the Representatives. The restrictions contained in the foregoing sentence shall not apply to (A) the issuance and sale of the Shares to be sold hereunder, (B) the issuance of shares of Common Stock upon exercise, conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other derivative securities or stock-based awards granted pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (C) the issuance of shares of, or options to purchase shares of, Common Stock, or the grant of other equity-based awards (including any securities convertible into shares of Common Stock), pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (D) the filing of any registration statement on Form S-8 with respect to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (E) the issuance of shares of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for shares of Common Stock or other securities) in connection with the acquisition by the Company or any of the Subsidiaries of the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with any such acquisition, or (F) the issuance of shares of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for shares of Common Stock or other securities) in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clauses (E) and (F), the aggregate number of shares issued in all such acquisitions and transactions does not exceed 10% of the outstanding Common Stock following the issuance and sale of the Shares to be sold hereunder. (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its reasonable best efforts to ~~be paid all expenses incident~~ list the Shares, subject to ~~the performance~~ notice of ~~its obligations under this Agreement~~issuance, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on ~~the~~ The New York Stock Exchange and ~~(viii) all other costs and expenses incident to~~ maintain the ~~performance~~ listing of the ~~obligations~~ Shares on The New York Stock Exchange. (l) The Company has caused each executive officer and director of the Company ~~hereunder~~ to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for ~~which provision is not otherwise made~~ an executive officer or director of the Company and provide the Company with notice of the impending release or waiver, substantially in ~~this Section. It is understood~~the form attached as Exhibit B hereto, ~~however~~at least three business days before the effective date of the release or waiver, ~~that except~~ the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver. (m) The Company shall apply the net proceeds of its sale of the Shares as ~~provided~~ set forth in ~~this Section~~the Registration Statement, ~~Section 6 entitled “Indemnity and Contribution,”~~ the General Disclosure Package and the ~~last paragraph~~ Prospectus. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of ~~Section 8 below,~~ the ~~Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ Shares in such a manner as would require the Company or any of the ~~Securities by them and~~ Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (p) The Company will not knowingly take, directly or indirectly, any ~~advertising expenses connected with~~ action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any ~~offers they may make~~securities of the Company.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Sunedison, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing in a timely manner or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Shares. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company has satisfied or will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) ~~The Company will prepare a final term sheet relating~~ Prior to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes termination of the offering of the ~~Securities. Any such final term sheet is an~~ Shares, the Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, (D) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, (E) of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eF) Ifof the occurrence of any event or development within the period when delivery of a Prospectus (or, ~~at any time when a prospectus relating~~ in lieu thereof, the notice referred to ~~the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in~~ under Rule ~~172 would be~~173(a) ~~required to be delivered~~ under the ~~Securities~~ Act) is required under the Act ~~in connection with sales by any Underwriter or dealer, any event occurs~~ (the “Prospectus Delivery Period”) as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ Prospectus Delivery Period, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives as many copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any applicable federal or state securities law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any applicable federal state or law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectGeneral Disclosure Package. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, an earnings statement or statements (which need not be audited) which shall satisfy the ~~listing~~ requirements of Section 11(a) of the ~~Securities on~~ Act and Rule 158 under the ~~New York Stock Exchange within 30 days of~~ Act, which obligation may be satisfied by filing such earnings statement or statements with the ~~Closing Date~~Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system. (j) ~~During~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date~~ of 30 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of BofA Securities, Inc., provided, however, that the ~~Representatives~~Company may issue and sell (i) Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to any employee equity incentive plan of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus that is in effect at or prior to the Closing Date, including, for the avoidance of doubt, the Omnibus Incentive Plan (each an “Incentive Plan”), (ii) Common Stock issuable upon exchange of Common Units, (iii) Common Stock in respect of tax withholding payments due upon the exercise of options or the vesting of restricted stock grants pursuant to any Incentive Plan; and (iv) Common Stock in an amount equal to up to five percent of the outstanding shares of Common Stock collectively beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act) by Stockholder Entities (as defined in that certain Amended and Restated Stockholders Agreement, dated as of August 9, 2017, by and among the Company and the other parties thereto) on the Closing Date immediately after this offering, or securities convertible into or exercisable or exchangeable for such amount of Common Stock, in connection with mergers or acquisitions, joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clause (iv), the recipient or acquiree of any such Common Stock or securities convertible into or exercisable or exchangeable for Common Stock is a party to or enters into an agreement substantially in the form of Exhibit A hereto with respect to such securities (the “Lock-up Agreement”). (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its best efforts to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with maintain the listing of the ~~Securities~~ Shares on the New York Stock Exchange. (l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (m) The Company has not taken, and 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 unlawful stabilization or manipulation of the price of any securities of the Company. (n) The Company’s Common Stock (i) is an “actively-traded security” as defined by Rule 100(b) of Regulation M under the Exchange Act, (ii) is exempted from the requirements of Rule 101 of Regulation M by Rule 101(c)(1) thereunder, and (~~viii~~iii) ~~all other costs and expenses incident to the performance~~ has an Average Daily Trading Volume of ~~the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except~~ at least $1.0 million (as provided in ~~this Section, Section 6 entitled “Indemnity~~ Regulation M) and ~~Contribution,” and the last paragraph~~ a public float of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeat least $150.0 million (as defined in Regulation M).

Appears in 1 contract

Sources: Equity Underwriting Agreement (Invitation Homes Inc.)

Covenants of the Company. ~~In further consideration~~ The Company covenants and agrees with the Underwriters that: 3.1 the Offered Shares will be duly and validly created, authorized and issued on the payment therefor and such Offered Shares will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and the Supplemented Prospectus; 3.2 it has filed a Canadian Shelf Prospectus in each of the ~~agreements~~ Qualifying Provinces, omitting only such information as is permitted to be omitted for such documents pursuant to the Securities Laws, and has obtained a receipt or similar decision document under the Passport Procedures for the Canadian Shelf Prospectus, evidencing a receipt (actual or deemed) thereof from each of the Canadian Securities Regulators; 3.3 it shall have, by not later than the Qualification Deadline, prepared and filed the Canadian Prospectus Supplement, in a form approved by the Underwriters, acting reasonably; 3.4 it shall fulfil to the satisfaction of the Underwriters, acting reasonably, all legal requirements to be fulfilled by it to enable the Offered Shares to be offered for sale and sold to the public in the Qualifying Jurisdictions by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; the Company will use its commercially reasonable efforts to fulfil all legal requirements to be fulfilled by it to permit the distribution of the Offered Shares in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfilment shall include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to and the preparation and filing of the Prospectus Supplements in each of the Qualifying Jurisdictions; 3.5 until the completion of the distribution of the Offered Shares, it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Supplements and any Amendment and shall allow the Underwriters to conduct all “due diligence” investigations which the Underwriters may reasonably require to fulfil the Underwriters’ obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in the Prospectus Supplement and any Amendment; 3.6 it will comply with Section 57 of the Securities Act (Ontario) and with the other comparable provisions of the applicable Securities Laws in each of the Qualifying Provinces and during the period from the date hereof to the completion of distribution of the Offered Shares, will promptly inform the Underwriters in writing of the full particulars of any material change (for greater certainty, material in the context of all assets, liabilities (contingent or otherwise), capital, ownership of the Company or proposed ownership of the Company, considered together), actual, anticipated or threatened, in the operating, financial or physical condition of the assets of the Company or any of them, or in the business of the Company or of any change in any material fact contained or referred to in the Supplemented Prospectus or any Amendment or Supplementary Material thereto or any document incorporated by reference therein, and of the existence of any material fact which is, or may be, of such a nature as to render the Canadian Shelf Prospectus, the U.S. Base Prospectus, the Supplemented Prospectus or any Amendment or Supplementary Material thereto, untrue, false or misleading in a material respect or result in a misrepresentation. The Company shall, to the satisfaction of the Underwriters ~~herein contained~~and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under Securities Laws in each of the Qualifying Provinces as a result of such change. The Company shall, in good faith, first discuss with the Co-Lead Underwriters any change in circumstances (actual or proposed within the Company’s knowledge) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this Section 3.6 and, in any event, prior to making any filing referred to in this Section 3.6. For greater certainty, it is understood and agreed that during the period between the date hereof to the date of completion of the distribution of the Offered Shares, if the Co-Lead Underwriters reasonably determine, after consultation with the Company, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Supplemented Prospectus or any Amendment or Supplementary Material thereto, or which may result in a misrepresentation, the Company ~~covenants with each Underwriter as follows~~will: ~~(a) The Company has filed~~ 3.6.1 prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or ~~will file each Statutory Prospectus (including the Prospectus)~~ advisable, after consultation with the ~~Commission~~ Co-Lead Underwriters; and 3.6.2 contemporaneously with filing the Amendment under the applicable laws of the Qualifying Jurisdictions, deliver to the Underwriters: 3.6.2.1 a copy of the Amendment, originally signed as required by the Securities Laws; 3.6.2.2 a copy of all documents relating to the proposed distribution of the Offered Shares and filed with the Amendment under the applicable Securities Laws; and 3.6.2.3 such other documents as the Underwriters shall reasonably require. 3.7 it shall use reasonable efforts to qualify the Offered Shares for sale under the securities laws of such jurisdictions as the Underwriters reasonably designate (other than the province of Québec) and to continue such qualifications in effect so long as required for the distribution of the Offered Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified, to execute a general consent to service of process in any state or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject; 3.8 it and its subsidiaries will comply in all material respects with the applicable provisions of the Sarbanes Oxley Act, including, without limitation, maintaining such controls and other procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is (i) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and (ii) accumulated and communicated to the Company’s management to ensure that material information relating to the Company and its subsidiaries is made known to them by others within those entities; 3.9 it will prepare the U.S. Prospectus in a form approved by the Co-Lead Underwriters and file such U.S. Prospectus pursuant to ~~and in accordance with~~ Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following ~~the earlier of the date it is first used and~~ the execution and delivery of this Agreement~~. The Company has complied and will comply with Rule 433~~ ; make no further amendment or any supplement to the Registration Statement or the U.S. Prospectus prior to the last Delivery Date except as provided herein; advise the Co-Lead Underwriters, promptly after it receives notice thereof, of the ~~Rules and Regulations. (b) The Company will advise the Representatives promptly of~~ time when any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to ~~which~~ the ~~Representatives reasonably object~~Registration Statement or the U.S. Prospectus has been filed and furnish the Co-Lead Underwriters with copies thereof; ~~and the Company will also~~ advise the ~~Representatives~~ Co-Lead Underwriters, promptly after it receives notice thereof, of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect of the Registration Statement~~ or of any ~~part thereof and will~~ order preventing or suspending the use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the ~~Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make~~ U.S. Prospectus or any ~~offer relating to the Securities that would constitute an~~ Issuer Free Writing Prospectus, ~~or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405~~ of the ~~Rules~~ suspension of the qualification of the Offered Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the U.S. Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the U.S. Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal; 3.10 it will furnish promptly to each of the Co-Lead Underwriters and ~~Regulations, required~~ to be counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission~~. Any such free writing prospectus consented to by~~ , and each amendment thereto filed with the ~~Company~~ Commission, including all consents and ~~the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that~~ exhibits filed therewith; 3.11 it will ~~treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of~~ pay the ~~Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations~~ applicable ~~to any Permitted Free Writing Prospectus, including timely~~ Commission filing ~~where required, legending and record keeping. (d) The Company will prepare a final term sheet~~ fees relating to the ~~Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented~~ Offered Shares with respect to ~~by the Representatives, and will file such final term sheet~~ each Delivery Date within the ~~period~~ time required by Rule ~~433(d)(5)(ii~~456(b)(1) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act without regard to the proviso therein; 3.12 if the delivery of a prospectus is required at any time after the date hereof in connection with ~~sales by~~ the offering or sale of the Offered Shares or any ~~Underwriter or dealer,~~ other securities relating thereto and if at such time any ~~event occurs~~ events shall have occurred as a result of which the ~~General Disclosure Package or the~~ U.S. 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 U.S. Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the U.S. Prospectus in order to comply with the Securities Act, to notify the Co-Lead Underwriters 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 Co-Lead Underwriters may from time to time reasonably request of an amended or supplemented U.S. Prospectus that will correct such statement or omission or effect such compliance; 3.13 it will file promptly with the Commission any amendment or supplement to the Registration Statement or the U.S. Prospectus that may, in the judgment of the Company or the Co-Lead Underwriters, be required by the Securities Act or requested by the Commission; 3.14 prior to filing with the Commission any amendment or supplement to the Registration Statement, or the U.S. Prospectus, any document incorporated by reference in the U.S. Prospectus or any amendment to any document incorporated by reference in the U.S. Prospectus, it will furnish a copy thereof to the Co-Lead Underwriters and counsel for the Underwriters; provided that prior to filing any such amendment or supplement the Co-Lead Underwriters shall not have reasonably objected in writing and such amendment or supplement is in compliance with Applicable Securities Laws; 3.15 it will not to make any offer relating to the Offered Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Co-Lead Underwriters; 3.16 it will comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent U.S. preliminary prospectus or the U.S. Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or or, if for any other reason it shall be necessary ~~during the same period~~ to amend or supplement any Issuer Free Writing Prospectus, to notify the ~~General Disclosure Package or the Prospectus or~~ Co-Lead Underwriters and, upon their request, to file ~~under~~ such document; 3.17 as soon as practicable after the ~~Exchange Act any document incorporated by reference in~~ Effective Date (it being understood that the ~~Prospectus in order to comply with~~ Company shall have until at least 405 days or, if the ~~provisions~~ fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the ~~Securities Act~~Company’s fiscal year, 440 days after the ~~Exchange Act or~~ end of the ~~Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters~~Company’s current fiscal quarter), it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its ~~securityholders~~ security holders and to deliver to the Co-Lead Underwriters an ~~earning~~ earnings statement ~~covering a period~~ of ~~at least 12 months beginning after~~ the ~~date of this Agreement~~ Company and ~~satisfying the provisions of~~ its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and ~~Rule 158~~ the rules and regulations thereunder (including, at the option of the ~~Rules and Regulations.~~Company, Rule 158); ~~(g) The Company~~ 3.18 it will ~~furnish to~~ apply the ~~Representatives copies~~ net proceeds from the sale of the ~~Registration Statement~~Offered Shares being sold by the Company substantially in accordance with the description as set forth in the U.S. Prospectus under the caption “Use of Proceeds”; 3.19 it and its affiliates will not take, ~~including all exhibits~~directly or indirectly, any ~~related preliminary prospectus, any related preliminary prospectus supplement,~~ action designed to or that has constituted or that reasonably would be expected to cause or result in the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement stabilization or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification manipulation of the ~~Securities for sale under the laws~~ price of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities security of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the ~~registration and delivery~~ offering of the ~~Securities~~ Offered Shares; and 3.20 it will do and perform all things required or necessary to be done and performed under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements this Agreement by it prior to ~~any of the foregoing, including all printing costs associated therewith~~each Delivery Date, and ~~the mailing and delivering of copies thereof~~ to ~~the Underwriters and dealers, in the quantities hereinabove specified, (ii)~~ satisfy all ~~costs and expenses related to the transfer and delivery of the Securities~~ conditions precedent to the Underwriters~~, including any transfer or other taxes payable thereon, (iii)~~ ’ obligations hereunder to purchase the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeOffered Shares.

Appears in 1 contract

Sources: Underwriting Agreement (Cott Corp /Cn/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it~~ Rules and Regulations a Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A or 430C of the Rules and Regulations and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute ~~an Issuer Free Writing Prospectus, or that would otherwise constitute~~ a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the ~~Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus~~Commission under Rule 433 under the Act.” (c) The Company ~~represents that it has treated and agrees that it~~ will ~~treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433~~ advise the Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the ~~Rules and Regulations~~Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and ~~has complied and will comply with the requirements of Rules 164 and 433~~ (D) of the ~~Rules and Regulations applicable to~~ issuance by the Commission of any ~~Permitted Free Writing~~ stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, ~~including timely Commission filing where required~~or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its reasonable best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, ~~legending and record keeping~~if issued. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ four signed copies of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any applicable law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities for sale~~ Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) Except for securities issued in the Private Placement (as defined below), the Company hereby agrees that until the Company consummates a Business Combination, it shall not issue any shares of Common Stock or any options or other securities convertible into Common Stock, or any shares of preferred stock which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination. Notwithstanding the foregoing, if (1) during the last 17 days of the lock-up period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the lock-up period, the Company announces that it will release earnings results during the 16-day period following the last day of the lock-up period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representative waives, in writing, such extension. (k) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Securities on the ~~New York~~ American Stock Exchange ~~within 30 days of the Closing Date~~(“AMEX”). (jl) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the ~~Prospectus~~Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (m) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants, as applicable. (n) The Company will not take, directly or indirectly, any action that constitutes or might reasonably be expected to ~~offer~~constitute, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ the stabilization or ~~otherwise dispose, except as provided hereunder of,~~ manipulation of the price of any securities of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Company. (ko) ~~Whether~~ For a period of four years from the Effective Date, or ~~not~~ such earlier time upon which the ~~transactions contemplated in this Agreement are consummated or this Agreement~~ Company is ~~terminated~~required to be liquidated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (p) For a period of four years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture~~Company’s Form 10-Q quarterly report. (q) The Company shall not consummate a Business Combination with any Initial Stockholder, or officer or director of the Company, or any entity which is affiliated with any Initial Stockholder or officer or director of the Company without first obtaining an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s stockholders from a financial point of view. Except as described in the Registration Statement, ~~any preliminary prospectus,~~ General Disclosure Package and the Prospectus, the Company shall not pay any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Stockholder or any of their affiliates or family members any fees or compensation from the ~~foregoing~~Company, ~~including all printing costs associated therewith, and the mailing and delivering of copies thereof~~ for services rendered to the ~~Underwriters and dealers~~Company prior to, ~~in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer~~ or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection ~~with~~ with, the ~~Indenture and~~ consummation of an initial Business Combination; provided that the ~~Securities, (vi) travel and lodging expenses of officers and employees of~~ Initial Stockholders shall be entitled to reimbursement from the Company for ~~any “road show” undertaken in connection with the marketing of the offering of the Securities, and one~~their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (r) The Company will take all necessary actions to ensure that, upon and at all times after the ~~listing~~ effectiveness of the ~~Securities on~~ Registration Statement, it will be in compliance in all material respects with (i) all provisions of the ~~New York Stock Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect and applicable to it and shall take such steps as are necessary to ensure that it will be in compliance in all material respects with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the effectiveness of such provisions to the extent they are applicable to the Company and (~~viii~~ii) ~~all other costs and expenses incident~~ the requirements of the American Stock Exchange’s AMEX Company Guide. (s) For a period of four years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the ~~performance~~ Representative (Attn: General Counsel), copies of such financial statements and other periodic and special reports as the ~~obligations~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, in each such case, subject to the execution of a confidentiality agreement reasonably satisfactory to the Company. (t) For a period equal to four years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants, under the Act. (u) In the event any person or entity (excluding attorneys, accountants and similar service providers that are not affiliated or associated with the NASD and are not brokers or finders) is engaged, in writing, to assist the issuer in finding or evaluating a merger candidate, the Company will provide the following to the NASD and the Representative prior to consummation of an initial Business Combination: (i) copies of agreements governing said services (which ~~provision~~ details or agreements may be appropriately redacted to account for privilege or confidentiality concerns), and (ii) a justification as to why the person or entity providing the merger and acquisition services should not be considered an “underwriter or related person” with respect to the Company’s initial public offering as such term is ~~not otherwise~~ defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the proxy statement which the Company will file for purposes of soliciting stockholder approval for the initial Business Combination. (v) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (w) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. In addition, upon receipt of the proceeds from the sale of any Option Units after the Closing Date, the Company shall promptly file a second or amended Current Report on Form 8-K with the Commission, which Report shall provide updated financial information to reflect the receipt of such additional proceeds. Upon the earlier to occur of (i) the expiration or termination of the Over-allotment Option and (ii) the exercise in full of the Over-allotment Option, the Company shall, subject to having filed the Current Report(s) on Form 8-K pursuant to the previous paragraph, promptly issue a press release announcing that separate trading of the Warrants and Common Stock will begin on the AMEX. (x) The Company shall advise the NASD if it is ~~understood~~aware that any 5% or greater securityholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of an NASD member participating in the distribution of the Securities. (y) The Company shall, ~~however~~as set forth in the Trust Agreement and disclosed in the Prospectus, ~~that except as provided~~ cause the proceeds of the offering to be held in ~~this Section, Section 6 entitled~~ the Trust Account to be invested only in “~~Indemnity and Contribution,~~government securities” ~~and~~ within the ~~last paragraph~~ meaning of Section ~~8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any~~ 2(a)(16) of the ~~Securities by them and any advertising expenses connected~~ 1940 Act with ~~any offers they may make.~~a maturity of 180 days or less, or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the 1940 Act with specific maturity dates. The Company will otherwise use its reasonable best efforts to conduct its business (bot

Appears in 1 contract

Sources: Underwriting Agreement (Apex Bioventures Acquisition Corp)

Covenants of the Company. ~~In further consideration of the agreements~~ The Company covenants and agrees with each of the Underwriters ~~herein contained,~~ of the ~~Company covenants with each Underwriter as follows~~Securities that: (a) ~~The Company has filed or~~ It will prepare the final Prospectus and will file ~~each Statutory~~ the final Prospectus ~~(including~~ pursuant to, and within the ~~Prospectus) with the Commission pursuant to and in accordance with~~ time frame specified by, Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ Securities Act Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make Before making any offer relating to the Securities that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of under the ~~Rules and Regulations~~Securities Act, required to be filed with the Commission~~. Any such~~ , the Company agrees that it will furnish to the Representatives a copy of the proposed Issuer Free Writing Prospectus or other free writing prospectus and will not make any such offer by means of such Issuer Free Writing Prospectus or other free writing prospectus to which the Representatives reasonably object in a timely manner; provided, however, that the Issuer Free Writing Prospectuses listed in Annex A shall be deemed consented to by the ~~Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.”~~ Representatives. The Company represents that it has treated and agrees that it will treat each ~~Permitted~~ permitted free writing prospectus as an Issuer Free Writing Prospectus ~~as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations,~~ and has complied and will comply with the requirements of ~~Rules 164 and~~ Rule 433 of under the ~~Rules and Regulations~~ Securities Act applicable to ~~any Permitted Free Writing Prospectus~~each and every permitted free writing prospectus, including timely filing with the Commission ~~filing~~ where required, legending and record keeping. (c) It will not file any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus to which the Representatives reasonably object in a timely manner, unless the Company is required by law to make such filing. (d) ~~The Company~~ It will ~~prepare a final term sheet relating to~~ advise the ~~Securities, containing only information that describes the final terms~~ Representatives promptly of ~~the Securities and otherwise in a form consented to by the Representatives,~~ any such amendment or supplement and will ~~file such final term sheet within~~ furnish the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementRepresentatives with copies thereof. (e) IfIt promptly will file all reports and any definitive proxy or information statements required to be filed with the Commission pursuant to Section 13(a), ~~at any time when~~ 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus ~~relating to the Securities as in the opinion of counsel for the Underwriters~~ is required (or but for the exemption in Rule 172 would bebe required) ~~required~~ in connection with the offering or sale of the Securities (the “Prospectus Delivery Period”), and during such same period it will advise the Representatives, promptly after it receives notice thereof, of: i. the time when any amendment to ~~be delivered under~~ the Registration Statement has been filed or becomes effective or any amendment or supplement to the Time of Sale Information or the Prospectus or any Issuer Free Writing Prospectus has been filed with the Commission; ii. the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Registration Statement or any Preliminary Prospectus or the Prospectus relating to the Securities or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act and, in ~~connection with sales by~~ the event of the issuance of any ~~Underwriter~~ such stop order or ~~dealer~~of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, promptly use its best efforts to obtain the withdrawal of such order; iii. the occurrence of any event ~~occurs~~ within the Prospectus Delivery Period as a result of which the ~~General Disclosure Package~~ Prospectus, the Time of Sale Information or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus ~~and all amendments and supplements~~ is delivered to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectusa purchaser, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contributionmisleading,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Underwriting Agreement (Horace Mann Educators Corp /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed~~ will (A) effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus and (B) not file any amendment to the Registration Statement or ~~will file each Statutory~~ distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~(including~~ or document incorporated by reference therein of which the ~~Prospectus)~~ Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations. The Company shall pay the required Commission ~~pursuant~~ filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) under the Rule and Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Rules and Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations)). (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included on Schedule III hereto, treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Securities within the meaning of the Act and (b) completion of the 60 -day restricted period referred to in Section 5(j) hereof. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly when any post-effective amendment to the ~~Securities~~Registration Statement shall have become effective, ~~containing only information that describes~~ of receipt of any comments from the ~~final terms of~~ Commission, when any amendment or supplement to the ~~Securities and otherwise in a form consented to by the Representatives~~Prospectus, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement. (e) If~~the Act, ~~at any time when a prospectus relating to~~ of the ~~Securities as in the opinion~~ occurrence of ~~counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ or development within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any stop order referred to in this paragraph and to obtain as soon as practicable the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectGeneral Disclosure Package. (i) The Company will ~~use~~ make generally available to its ~~commercially~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the date hereof, an earnings statement (which need not be audited) in reasonable ~~efforts to effect~~ detail, covering a period of at least 12 consecutive months beginning after the ~~listing~~ date hereof, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available, which requirements may be satisfied by filing on the ~~New York Stock Exchange within 30 days of the Closing Date~~Commission’s Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”). (j) ~~During~~ No offering, pledge, sale, contract to sell, 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) whether directly or indirectly, and no filing or confidential submission of a registration statement with the Commission relating to the offering of shares of Common Stock or other securities convertible into or exchangeable or exercisable for shares of Common Stock will be made, in each case for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 60 days after the date of the ~~Prospectus~~Prospectus by the Company or, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short~~ in each case except for (i) the issue and sale ~~or otherwise dispose, except as provided hereunder of, any securities~~ of the ~~Company that are substantially similar~~ Shares hereunder, (ii) grants of stock options, stock appreciation rights, restricted stock, restricted stock units, deferred stock units or other stock-based awards pursuant to the ~~Securities~~SiTime Corporation 2019 Stock Incentive Plan (the “SiTime Stock Plan”), ~~without~~ (iii) issuances of Common Stock pursuant to the exercise, conversion or vesting of stock options, stock appreciation rights, restricted stock, restricted stock units, deferred stock units or other stock-based awards granted pursuant to the SiTime Stock Plan, (iv) issuances of Common Stock pursuant to an employee stock purchase plan and the filing of one or more registration statements on Form S-8 in connection therewith or (v) or with the prior written consent of ~~the Representatives~~Barclays Capital Inc. and Credit Suisse Securities (USA) LLC. (k) ~~Whether or not~~ The Company will use its best efforts to list the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ Shares on the Exchange. (l) The Company has caused each executive officer and director of the Company ~~will pay~~ to execute and deliver to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (m) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ the ~~Prospectus, any Issuer Free Writing~~ General Disclosure Package and the Prospectus and ~~amendments and supplements to~~ shall file with the Commission such information as may be required by Rule 463 under the Act. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Stock. (p) 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 1 contract

Sources: Underwriting Agreement (SITIME Corp)

Covenants of the Company. ~~In further consideration~~ The Company agrees with each of the ~~agreements of the Underwriters herein contained~~Underwriters, the ~~Company covenants with each Underwriter as follows~~Forward Sellers and the Forward Purchasers: (a) ~~The Company has filed or will~~ To prepare the Prospectus in a form approved by the Representatives, the Forward Sellers and the Forward Purchasers and to file ~~each Statutory~~ such Prospectus ~~(including the Prospectus) with the Commission~~ pursuant to ~~and in accordance with~~ Rule 424(b) ~~not later than~~ under the 1933 Act prior to the earlier of the (i) Initial Closing Date and (ii) the SEC’s close of business on the second business day following the ~~earlier of the date it is first used and the~~ execution and delivery of this ~~Agreement. The Company has complied and will comply with~~ Agreement or, if applicable, such earlier time as may be required by Rule ~~433 of~~ 424(b) under the ~~Rules and Regulations. (b) The Company will advise the Representatives promptly of~~ 1933 Act; to make no further amendment or any ~~proposal~~ supplement to ~~amend or supplement~~ the Registration Statement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the ~~General Disclosure Package~~ Prospectus prior to the applicable Closing Date which shall be disapproved by the Representatives, the Forward Sellers or the Forward Purchasers promptly after reasonable notice thereof; to advise the Representatives, the Forward Sellers and ~~will afford~~ the ~~Representatives a reasonable opportunity~~ Forward Purchasers, promptly after it receives notice thereof, of the time when any amendment to ~~comment on~~ the Registration Statement has been filed or becomes effective or any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus has been filed with the SEC and to furnish the Representatives, the Forward Sellers and the Forward Purchasers with copies thereof; to file promptly all material required to be filed by the Company ~~will also advise~~ with the ~~Representatives~~ SEC pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the ~~filing~~ 1934 Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or sale of the Shares; to promptly notify the Representatives, the Forward Sellers and the Forward Purchasers of any written notice given to the Company by either of Moody’s Investors Service, Inc. or S&P Global Ratings, a division of S&P Global Inc. (each, a “Rating Agency”), of any intended decrease in any rating of any securities of the Company or of any intended change in any such rating that does not indicate the direction of the possible change of any such ~~amendment or supplement~~ rating, in each case by any such Rating Agency; to advise the Representatives, the Forward Sellers and the Forward Purchasers, promptly after it receives notice thereof, of the ~~institution~~ issuance by the ~~Commission~~ SEC of any stop order ~~proceedings~~ or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose or pursuant to Section 8A of the 1933 Act against the Company or relating to the offering of the Shares, or of any request by the SEC for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of ~~any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent~~ or of ~~the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make~~ any ~~offer relating to the Securities that would constitute an Issuer Free Writing Prospectus,~~ such order preventing or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to suspending the use by of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities~~ Preliminary Prospectus or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the ~~Securities as in~~ Shares or suspending any such qualification, to promptly use its best efforts to obtain the ~~opinion~~ withdrawal of ~~counsel for~~ such order. (b) If at any time prior to the ~~Underwriters is~~ applicable Closing Date (~~or but for the exemption in Rule 172 would be~~A) ~~required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ shall occur or condition shall exist as a result of which the ~~General~~ Pricing Disclosure ~~Package or the Prospectus~~ Package, as then amended or ~~supplemented~~ 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, not misleading or (B) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Representatives, the Forward Sellers and the Forward Purchasers thereof and forthwith prepare and file with the SEC (to the extent required) and furnish to the Representatives, the Forward Sellers and the Forward Purchasers and to such dealers as the Representatives may designate, such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package, as so amended or supplemented, will not, in the light of the circumstances under which they were made, be misleading or so that the Pricing Disclosure Package will comply with law. (c) For so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or sale of the Shares, to furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may reasonably designate and to file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation, qualify as a dealer in securities or file a general consent to service of process under the laws of any jurisdiction. (d) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, to file, prior to the Renewal Deadline, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives, the Forward Sellers and the Forward Purchasers, and will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (e) If at any time when the Shares remain unsold by the Underwriters the Company receives from the SEC a notice pursuant to Rule 401(g)(2) under the 1933 Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, to (i) promptly notify the Representatives, the Forward Sellers and the Forward Purchasers, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Representatives, the Forward Sellers and the Forward Purchasers, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives, the Forward Sellers and the Forward Purchasers of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be. (f) To promptly furnish the Representatives, the Forward Sellers and the Forward Purchasers with electronic copies of the Prospectus and each Issuer Free Writing Prospectus prepared by the Company (to the extent not previously delivered), as amended or supplemented, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required at any time in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus, as then amended or supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act), such Pricing Disclosure Package or such Issuer Free Writing Prospectus, as then amended or supplemented, is delivered, not misleading, or or, if for any other reason it shall be necessary during ~~the~~ such same period to amend or supplement the ~~General Disclosure Package or the~~ Prospectus or to file under the ~~Exchange~~ 1934 Act any document incorporated by reference in the Prospectus in order to comply with the ~~provisions of the Securities Act, the Exchange~~ 1933 Act or the ~~Trust Indenture~~ 1934 Act, ~~the Company promptly will~~ to notify the ~~Representatives of~~ Representatives, the Forward Sellers and the Forward Purchasers and, upon their request, to file such ~~event~~document and to prepare and furnish without charge to the Representatives, the Forward Sellers and ~~if such event shall occur or if~~the Forward Purchasers and to any dealer in securities as many electronic copies as the Representatives, in the ~~opinion of counsel for~~ Forward Sellers and the ~~Underwriters, it is necessary at any~~ Forward Purchasers may from time to ~~amend the General Disclosure Package~~ time reasonably request of an amended Prospectus or a supplement to the Prospectus ~~to comply with the Securities Act, the Company 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 which will~~ effect such compliance~~. Neither~~ , or, if at any time prior to the applicable Closing Date (i) any event shall occur or condition shall exist as a result of which the Pricing Disclosure Package, as then amended or supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Representatives, the Forward Sellers and the Forward Purchasers thereof and forthwith prepare and, subject to Section 5(a) hereof, file with the SEC (to the extent required) and furnish to the Underwriters, the Forward Sellers and the Forward Purchasers and to such dealers as the Representatives ~~consent to~~may designate, ~~nor~~ such amendments or supplements to the ~~Underwriters’ delivery of~~Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package, ~~any such amendment~~ as so amended or ~~supplement shall constitute~~ supplemented, will not include an untrue statement of a ~~waiver of any~~ material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the ~~conditions set forth~~ circumstances under which they were made, not misleading or so that the Pricing Disclosure Package will comply with law; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) in connection with sales of the Shares at any time nine months or more after the time of issue of the Prospectus, upon the Representatives’ request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many electronic copies as the Representatives may request of an amended or supplemented Prospectus complying with Section ~~5 hereof~~10(a)(3) of the 1933 Act. (fg) As To make generally available to its security holders and to holders of the Shares, as soon as practicable, but in any event not later than ~~16 months,~~ 18 months after the effective date of ~~this Agreement~~the Registration Statement (as defined in Rule 158(c) under the 1933 Act), ~~the Company will make generally available to its securityholders~~ an earning statement ~~covering a period~~ of ~~at least 12 months beginning after~~ the ~~date of this Agreement and satisfying the provisions of~~ Company (which need not be audited) complying with Section 11(a) of the ~~Securities~~ 1933 Act and the rules and regulations of the SEC thereunder (including, at the option of the Company, Rule 158 of under the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents1933 Act). (h) ~~The Company will arrange~~ Upon request of an Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, service marks and corporate logo for use on the website, if any, operated by such Underwriter for the ~~qualification~~ purpose of facilitating the on-line offering of the ~~Securities for sale under~~ Shares (the ~~laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution~~“License”); provided, however, that the License shall be used solely for the purpose described in ~~connection therewith the Company shall~~ this Section 5(h), is granted without any fee and may not be ~~required to qualify to do business in any jurisdiction~~ assigned or ~~to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject~~transferred. (i) ~~The Company will use its commercially reasonable efforts to effect~~ To apply any proceeds received by it from the ~~listing~~ offering and sale of any Primary Shares and any proceeds received by it upon settlement of the ~~Securities on~~ Forward Sale Agreements and any Additional Forward Sale Agreements, in each case, for the ~~New York Stock Exchange within 30 days of~~ purposes set forth in the ~~Closing Date~~Registration Statement, the Pricing Disclosure Package and the Prospectus. (j) During ~~the~~ a period ~~beginning~~ of 60 days from ~~the date hereof and continuing to and including the date 30 days after~~ the date of the Prospectus, ~~not~~ to not, without the prior written consent of Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC, directly or indirectly, (i) offer, pledge, sell, contract to sell, ~~pledge~~sell any option or contract to purchase, purchase any option or contract to sell, grant any ~~option~~ option, right or warrant to ~~purchase, make any short sale~~ purchase or otherwise ~~dispose, except as provided hereunder of,~~ transfer or dispose of any shares of Common Stock or any securities ~~of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether~~ convertible into or ~~not the transactions contemplated in this Agreement are consummated~~ exercisable or ~~this Agreement is terminated, the Company will pay~~ exchangeable for Common Stock or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the file any registration ~~and delivery of the Securities~~ statement under the ~~Securities~~ 1933 Act ~~and all other fees or expenses in connection~~ with ~~the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ respect to any of the foregoing, ~~including all printing costs associated therewith~~(ii) enter into any swap, or any other agreement or any transaction, that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to take any of the actions restricted by clause (i) or (ii) above. The foregoing sentence shall not apply to (A) the Primary Shares to be sold hereunder, if any, and any shares of Common Stock that may be issued and delivered pursuant to the Forward Sale Agreements and any Additional Forward Sale Agreements, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion or exchange of a security outstanding on the date hereof, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit or compensation plans of the Company (or the filing of a registration statement under the 1933 Act with respect thereto), (D) any shares of Common Stock issued pursuant to any existing nonemployee director stock plan or dividend reinvestment and stock purchase plan of the Company (or the filing of a registration statement under the 1933 Act with respect thereto) or (E) any shares of Common Stock that may be issued and delivered pursuant to any forward sale agreements entered into by the Company prior to the date hereof under its “at the market” equity distribution program. (k) To not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the 1934 Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (l) To use its commercially reasonable efforts to cause the Primary Shares, if any, and the ~~mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the~~ Issuable Securities to ~~the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services~~ be approved for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing ~~of the Securities~~ on the New York Stock Exchange ~~and~~ (~~viii~~the “NYSE”) ~~all other costs and expenses incident~~ not later than the Initial Closing Date, subject only to ~~the performance~~ official notice of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeissuance.

Appears in 1 contract

Sources: Underwriting Agreement (Ameren Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each~~ the Underwriter ~~as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ a Prospectus in a form approved by the ~~second business day following~~ Underwriter containing information previously omitted at the ~~earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the 1933 Act, and (B) not file any amendment to the Registration Statement with respect to the Common Stock or distribute an amendment or supplement to the Disclosure Package or the Prospectus or document incorporated by reference therein of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is ~~first used~~ not in compliance with the 1933 Act and the ~~execution~~ 1933 Act Regulations and ~~delivery of this Agreement. The~~ (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company ~~has complied and will comply~~ with ~~Rule 433~~ the Commission subsequent to the date of the ~~Rules~~ Prospectus and ~~Regulations~~prior to the termination of the offering of the Shares by the Underwriter. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) required to be filed by the Company with the Commission under Rule 433 unless the Underwriter approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Underwriter hereto shall be deemed to have been given in respect of the Issuer General Use Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Underwriter promptly (A) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement,~~ Statement or for supplement to the Disclosure Package or the Prospectus or ~~the General Disclosure Package~~ for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the 1933 Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will ~~prepare a final term sheet relating~~ cooperate with the Underwriter in endeavoring to qualify the ~~Securities~~Shares for sale under the securities laws of such jurisdictions as the Underwriter may reasonably have designated in writing and will make such applications, ~~containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives~~file such documents, and ~~will~~ furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a ~~Permitted Free Writing Prospectus for purposes of this Agreement~~consent. The Company ~~also consents~~ will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~use by any~~ Underwriter ~~of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ may reasonably request for distribution of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementShares. (e) IfThe Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any preliminary prospectus as the Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any Issuer Free Writing Prospectus as the Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriter during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the 1933 Act) (the “Prospectus Delivery Period”) is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Company will deliver to the Underwriter at ~~any time when~~ or before the Closing Date, four conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriter such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriter may reasonably request. The foregoing delivery requirements may be satisfied by the delivery of an electronic pdf. copy. (f) The Company will comply with the 1933 Act and the 1933 Act Regulations, and the 1934 Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~relating~~ (or, in lieu thereof, the notice referred to under Rule 173(a) under the ~~Securities as in the opinion of counsel for the Underwriters~~ ▇▇▇▇ ▇▇▇) is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under~~ by the ~~Securities Act in connection with sales by any~~ Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriter, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ either (i) prepare and file with the ~~Commission, at its own expense,~~ Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the 1934 Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances when it is so delivered, ~~but not later than 16 months~~be misleading, ~~after~~ or so that the ~~date of this Agreement,~~ Prospectus will comply with the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulationslaw. (g) ~~The~~ If the Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriter, it becomes necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the ~~Representatives copies~~ Underwriter and any dealers an appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the 1934 Act which shall be incorporated by reference in the Disclosure Package so that the Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 1933 Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ 1933 Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) ~~The Company will use its commercially reasonable efforts~~ Prior to ~~effect the listing of the Securities on the New York Stock Exchange within 30 days of~~ the Closing Date, the Company will furnish to the Underwriter, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the Disclosure Package and the Prospectus. (j) ~~During~~ Other than pursuant to the DRIP and other compensation and stock plans identified in the Registration Statement, Disclosure Package and the Prospectus, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Underwriter. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 90-day restricted period, then in each case the restrictions imposed by this paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Underwriter waives, in writing, such extension. (k) ~~Whether or not~~ The Company will use its best efforts to maintain the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ listing of the Shares on the NYSE. (l) The Company has caused each officer and director of the Company ~~will pay~~ to furnish to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (m) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ Disclosure Package and the ~~Prospectus, any Issuer Free Writing~~ Prospectus and ~~amendments~~ shall file such reports with the Commission with respect to the sale of the Shares and ~~supplements to~~ the application of the proceeds therefrom as may be required in accordance with Rule 463 under the 1933 Act. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Stock. 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Urstadt Biddle Properties Inc)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ a Prospectus in a form approved by the ~~second business day following~~ Representative containing information previously omitted at the ~~earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430B under the 1933 Act, and (B) not file any amendment to the Registration Statement with respect to the Preferred Stock or distribute an amendment or supplement to the Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used~~ not in compliance with the 1933 Act and the ~~execution~~ 1933 Act Regulations and ~~delivery of this Agreement. The~~ (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company ~~has complied and will comply~~ with ~~Rule 433~~ the Commission subsequent to the date of the ~~Rules~~ Prospectus and ~~Regulations~~prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) required to be filed by the Company with the Commission under Rule 433 unless the Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer General Use Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in the Underwriters or the Company being required to file with the Commission pursuant to Rule 433(d) a free writing prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (A) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (B) of any request of the Commission for amendment of the Registration ~~Statement,~~ Statement or for supplement to the Disclosure Package or the Prospectus or ~~the General Disclosure Package~~ for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (C) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the 1933 Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will ~~prepare a final term sheet relating~~ cooperate with the Representative in endeavoring to qualify the ~~Securities~~Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, ~~containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives~~file such documents, and ~~will~~ furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a ~~Permitted Free Writing Prospectus for purposes of this Agreement~~consent. The Company ~~also consents~~ will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ Representative may reasonably request for distribution of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementShares. (e) IfThe Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any preliminary prospectus as each Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Issuer Free Writing Prospectus as each Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the 1933 Act) (the “Prospectus Delivery Period”) is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as each Underwriter may reasonably request. The Company will deliver to the Representative at ~~any time when~~ or before the Closing Date, four conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriters may reasonably request. The foregoing delivery requirements may be satisfied by the delivery of an electronic pdf copy. (f) The Company will comply with the 1933 Act and the 1933 Act Regulations, and the 1934 Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~relating~~ (or, in lieu thereof, the notice referred to under Rule 173(a) under the ~~Securities as in the opinion of counsel for the Underwriters~~ ▇▇▇▇ ▇▇▇) is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under~~ by the ~~Securities Act in connection with sales by any Underwriter~~ Underwriters or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representatives, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ either (i) prepare and file with the ~~Commission, at its own expense,~~ Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the 1934 Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances when it is so delivered, ~~but not later than 16 months~~be misleading, ~~after~~ or so that the ~~date of this Agreement,~~ Prospectus will comply with the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulationslaw. (g) ~~The~~ If the Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the ~~Representatives copies~~ Underwriters and any dealers an appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the 1934 Act which shall be incorporated by reference in the Disclosure Package so that the Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 1933 Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ 1933 Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the Disclosure Package and the Prospectus. (j) No offering, sale, short sale or other disposition of any shares of the Preferred Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Preferred Stock or derivative of Preferred Stock of the Company (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representative. Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 60-day restricted period, then in each case the restrictions imposed by this paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representative waives, in writing, such extension. (k) The Company will use its commercially reasonable efforts to ~~effect~~ have the ~~listing~~ Preferred Stock registered pursuant to Section 12(b) of the ~~Securities~~ 1934 Act, to use its commercially reasonable efforts to list the Shares on the ~~New York Stock Exchange within 30 days~~ NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that seek to have securities listed on the ~~Closing Date~~NYSE. (jl) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the ~~Prospectus~~Shares as set forth in the Registration Statement, Disclosure Package and 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 1933 Act. (m) The Company shall not ~~to offer~~invest, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ or otherwise ~~dispose~~use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (n) The Company will maintain a transfer agent and, ~~except~~ if necessary under the jurisdiction of incorporation of the Company, a registrar for the Preferred Stock. (o) The Company will use its best efforts to continue to meet the requirements for qualification and taxation as ~~provided hereunder of~~a REIT under the Code unless the board of directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to be so qualified. (p) The Company will prepare and file the Articles Supplementary with the SDAT. (q) The Company will prepare a final term sheet, containing a description of the final terms of the Shares and the offering thereof, in the form approved by the Representative and attached as Schedule II hereto, and will file such term sheet as an Issuer Free Writing Prospectus pursuant to Rule 433(d) within the time required by such Rule. (r) The Company will reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of the Common Stock for the purpose of enabling the Company to satisfy any obligation to issue conversion Shares of Common Stock upon the conversion of the Shares in accordance with the Articles Supplementary. (s) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Company. (kt) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause to be paid~~ irrevocably set aside and deposit with the paying agent the funds necessary for the redemption of all ~~expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ outstanding shares of the ~~Company’s counsel and the Company’s accountants~~ Series E Preferred Stock in ~~connection~~ accordance with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeSeries E Articles Supplementary.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Urstadt Biddle Properties Inc)

Appears in 1 contract

Sources: Equity Underwriting Agreement (Evergreen Solar Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed~~ will (i) use its reasonable best efforts to cause the Registration Statement or ~~will~~ any Rule 462(b) Registration Statement to become effective or, if the procedure in Rule 430A under the Securities Act is followed, to prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Securities Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rule 430A under the Securities Act; (ii) not file any amendment to the Registration Statement or any Rule 462(b) Registration Statement or supplement to the Prospectus or any document under the Exchange Act if such document would be deemed to be incorporated by reference into the Prospectus, of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used~~ not in compliance with the Securities Act or the Exchange Act; and (iii) file on a timely basis, and in compliance with the ~~execution~~ Exchange Act and ~~delivery of this Agreement. The Company has complied and will comply with Rule 433~~ § 906 of the ~~Rules~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, all reports and ~~Regulations~~any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (c) The Company will advise the ~~Representatives~~ Representative promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective; (ii) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission; (iii) of any request of the Commission for amendment of the Registration ~~Statement,~~ Statement or for supplement to the Prospectus or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ for any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object~~additional information; and ~~the Company will also advise the Representatives promptly~~ (iv) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any ~~part thereof and~~ proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will ~~prepare a final term sheet relating~~ cooperate with the Representative in endeavoring to qualify the ~~Securities~~Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, ~~containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives~~file such documents, and ~~will~~ furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a ~~Permitted Free Writing Prospectus for purposes of this Agreement~~consent. The Company ~~also consents~~ will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ Representative may reasonably request for distribution of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementShares. (e) IfThe Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at ~~any time when~~ or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request. (f) The Company will comply with the Securities Act and the Exchange Act, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend or supplement the ~~General Disclosure Package~~ Prospectus, or to file any document incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ prepare and file with the ~~Commission, at its own expense,~~ Commission an appropriate amendment to the Registration Statement or supplement ~~which~~ to the Prospectus so that the Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (fg) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules~~ Securities Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gh) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Statement and the Prospectus. (i) No offering, sale, short sale or other disposition of any ~~Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on~~ shares of Common Stock of the ~~business day next succeeding~~ Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivatives of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this ~~Agreement~~ Agreement, directly or ~~as soon as possible~~indirectly, by the Company otherwise than hereunder or with ~~respect~~ your prior written consent; provided, however, that the Company may (i) issue shares of Common Stock upon the exercise of warrants outstanding on the date hereof and described in the Prospectus, (ii) grant options to purchase shares of Common Stock and issue shares of Common Stock upon the exercise of options, in both cases, pursuant to any ~~amendment~~ stock option plan or ~~supplement~~arrangement described in the Prospectus, ~~during~~ (iii) issue shares of Common Stock under the ~~period mentioned~~ DRIP, (iv) issue shares of Common Stock (or securities convertible into Common Stock) in ~~Section 4(e~~payment of all or a portion of the purchase price for properties acquired from sellers who are not affiliates of the Company (provided that in each of (i), (ii) ~~above~~ and in (iv) each recipient of such ~~quantities as the Representatives reasonably request. The Company will pay the expenses~~ shares of ~~printing and distributing~~ Common Stock, or securities convertible into Common Stock, enters into a lock-up agreement with terms substantially equivalent to the ~~Underwriters all~~ lock-up agreements delivered to the Representative pursuant to Section 4(k)) and (v) file amendments and/or supplements to the Company's previously filed registration statement relating to the Company's July 2000 offering of 300,000 units consisting of shares of Common Stock and warrants for the purpose of updating any prospectus forming a part of such ~~documents~~registration statement. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (ij) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ list, subject to notice of issuance, the ~~listing of the Securities~~ Shares on the ~~New York Stock Exchange within 30 days of the Closing Date~~AMEX. (jk) ~~During~~ The Company has caused each officer and director and specific stockholders of the ~~period beginning from the date hereof and continuing~~ Company to ~~and including the date 30 days after~~ furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the ~~Prospectus~~Underwriters, pursuant to which each such person shall agree not to offer, sell, ~~contract to sell, pledge, grant any option to purchase, make any~~ sell short ~~sale~~ or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any ~~securities~~ shares of Common Stock of the Company ~~that are substantially similar~~ 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 request the registration for the offer or sale of any of the foregoing (or as to which such person has the ~~Securities~~right to direct the disposition of) for a period of 45 days after the date of this Agreement, ~~without~~ directly or indirectly, except with the prior written consent of ~~the Representatives~~RBC Capital Markets Corporation ("Lockup Agreements"). (kl) ~~Whether~~ The Company shall apply the net proceeds of its sale of the Shares as described under the heading "Use of Proceeds" in the Prospectus and shall report 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 Securities Act. (m) The Company shall not invest, or ~~not~~ otherwise use the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (n) The Company will ~~pay or cause to be paid all expenses incident to~~ maintain a transfer agent and, if necessary under the ~~performance~~ jurisdiction of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ incorporation of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel a registrar for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCommon Stock.

Appears in 1 contract

Sources: Underwriting Agreement (Amerivest Properties Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Notes by the Underwriters. (b) The Company will (i) not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a “free writing prospectus” (as defined in Rule 405 under the Act) prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (d) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (ce) ~~The~~ If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company ~~represents~~ will, prior to the Renewal Deadline, file, if it has not already done so and ~~agrees that~~is eligible to do so, ~~unless~~ a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it ~~obtains~~ has not already done so, file a new shelf registration statement relating to the ~~prior consent of~~ Notes, in a form satisfactory to the Representatives, and ~~each Underwriter represents~~ will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline and ~~agrees that, unless it obtains~~ to promptly notify the ~~prior consent~~ Underwriters of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (f) The Company ~~and~~ will cooperate with the ~~Representatives, it has not made~~ Representatives in endeavoring to qualify the Notes for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided the Company shall not ~~make~~ be required to qualify as a foreign corporation or to file a general consent to service of process in any ~~offer relating~~ jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Notes. (g) The Company will deliver to the ~~Securities that would constitute an~~ Representatives as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus, including the documents incorporated by reference therein, in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, a signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that ~~would otherwise constitute a “free writing prospectus,”~~ may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as ~~defined in Rule 405 of~~ the Representatives may reasonably request. (h) The Company will comply with the Act, the Rules and Regulations, ~~required to be filed with~~ the ~~Commission. Any such free writing prospectus consented to by the Company~~ Exchange Act and the ~~Representatives is hereinafter~~ Trust Indenture Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in under Rule ~~433 of~~ 173(a) under the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (dAct) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period is required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (i) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fj) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months ~~beginning~~ after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gk) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies of the Registration Statement~~Underwriters, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~they have been prepared by or are available to the Company, ~~with respect~~ a copy of any unaudited interim financial statements of the Company for any period subsequent to ~~any amendment or supplement, during~~ the period ~~mentioned~~ covered by the most recent financial statements appearing in ~~Section 4(e) above~~ the Registration Statement and ~~in such quantities as~~ the ~~Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents~~Prospectus. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (jl) During the period beginning ~~from~~ on the date hereof and continuing to ~~and including~~ the date 30 that is 90 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the SecuritiesClosing Date, without the prior written consent of ~~the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇▇▇ LLC, the Company will ~~pay~~ not offer, sell, contract to sell or ~~cause to be paid all expenses incident~~ otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the ~~performance~~ Notes, other than commercial paper issued in the ordinary course of business. (m) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Notes as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus~~General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Notes and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (n) The Company shall not invest, or otherwise use, the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to~~ proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will not take, ~~including all printing costs associated therewith~~directly or indirectly, ~~and~~ any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the ~~mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ stabilization or manipulation of the ~~Securities to the Underwriters, including~~ price of any ~~transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by~~ securities ~~rating services for rating the Securities, (v) the fees and expenses~~ of the ~~Trustee and any agent of~~ Company. (p) The Company will use its best efforts to list the ~~Trustee and the fees and disbursements of counsel~~ Notes for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities quotation on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeNYSE.

Appears in 1 contract

Sources: Underwriting Agreement (Paragon Shipping Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each~~ the Underwriter ~~as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Underwriter containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriter. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Underwriter approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (c) The Company will advise the ~~Representatives~~ Underwriter promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Shares shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time ~~when~~ after the Underwriter has informed the Company that Shares remain unsold, the Company receives from the Commission a ~~prospectus~~ notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Underwriter, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the ~~Securities~~ Shares, in a form satisfactory to the Underwriter, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Underwriter of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the ~~opinion~~ Registration Statement that was the subject of ~~counsel~~ the notice under Rule 401(g)(2) under the Act or for which the ~~Underwriters~~ Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (e) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement the Underwriter has informed the Company that Shares remain unsold, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (f) The Company agrees to pay the required filing fees to the Commission relating to the Shares within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (g) The Company will cooperate with the Underwriter in endeavoring to qualify the Shares for sale under (or ~~but~~ obtain exemptions from the application of the qualification requirements of) the securities laws of such jurisdictions as the Underwriter may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriter may reasonably request for distribution of the Shares. The Company shall advise the Underwriter 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 of 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 shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment. (h) The Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriter during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule ~~172 would be~~173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Company will maintain in the Company’s files manually signed copies of the Registration Statement as initially filed and all amendments thereto including all consents and exhibits filed therewith in accordance with the Rules and Regulations of the Commission. (i) The Company will comply with the Act, the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered ~~under~~ by the ~~Securities Act in connection with sales by any~~ Underwriter or a dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriter, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time prior to the consummation of the Offering to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (j) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriter, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriter and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fk) As The Company will make generally available to its security holders, as soon as ~~practicable~~it is practicable to do so, but in any event not later than ~~16 months~~15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (l) Prior to the Closing Date, the Company will furnish to the Underwriter, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (m) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of this Agreement, directly or indirectly, by the Company ~~will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after~~ otherwise than hereunder or with the ~~date of this Agreement and satisfying the provisions of Section 11(a)~~ prior written consent of the ~~Securities Act~~ Underwriter, which consent shall not be unreasonably withheld; provided, however, that the Company may issue (i) shares of its Common Stock upon the exercise of options, (ii) shares of its Common Stock pursuant to stock grants and ~~Rule 158~~ (iii) options to purchase its Common Stock, to directors, officers and employees of the ~~Rules and Regulations~~Company, issued pursuant to employee or director benefit plans, stock option plans or the employee compensation plans. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (in) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ list, subject to notice of issuance, the ~~listing~~ Shares on the Nasdaq Global Select Market. (o) The Company will use its best efforts to cause each executive officer, director, other person or entity of the ~~Securities~~ Company listed on ~~the New York Stock Exchange within 30 days of~~ Exhibit B furnish to you, on or prior to the Closing Date, a letter or letters, substantially in the form of Exhibit C hereto (the “Lockup Agreement”). (jp) ~~During~~ The Company shall apply the ~~period beginning from the date hereof and continuing to and including the date 30 days after the date~~ net proceeds of its sale of the ~~Prospectus~~Shares as set forth in the General Disclosure Package and 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. (q) The Company shall not invest, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale~~ or otherwise ~~dispose~~use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (r) The Company will maintain a transfer agent and, ~~except as provided hereunder of~~if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (s) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~Company. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Wynn Resorts LTD)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing in a timely manner or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will (i) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder and (ii) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company has satisfied or will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) Prior to the termination of the offering of the Shares, the Company will advise the Representatives promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any ~~proposal~~ comments from the Commission, (iii) when any supplement to ~~amend~~ the Prospectus or ~~supplement~~ any amendment to the Prospectus has been filed, (iv) of any request of the Commission for amendment of the Registration ~~Statement~~Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, (v) of the issuance by the Commission of any stop 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 institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (vi) of the occurrence of any event or development within the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act (the “Prospectus Delivery Period”) as a result of which the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus or the General Disclosure Package is delivered to a purchaser, not misleading, and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (v) or (vii) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. 18 (e) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ Prospectus Delivery Period, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives as many copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (f) If, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as possible; and the Company will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any applicable federal or state securities law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any applicable federal state or law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectGeneral Disclosure Package. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, an earnings statement or statements (which need not be audited) which shall satisfy the ~~listing~~ requirements of Section 11(a) of the ~~Securities on~~ Act and Rule 158 under the ~~New York Stock Exchange within 30 days of~~ Act, which obligation may be satisfied by filing such earnings statement or statements with the ~~Closing Date.~~Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system. 19 (j) ~~During~~ No (whether by the Company or any of its subsidiaries) (i) offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such), (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, (iii) filing with the Commission of a registration statement under the Act relating to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (iv) public disclosure of the intention to make any such offer, pledge, sale, disposition, swap, submission or filing, will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 60 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of each of the Representatives; provided, however, the Company may issue (A) Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to any employee equity incentive plan of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus that is in effect at or prior to the Closing Date (each an “Incentive Plan”) and the filing of a registration statement on Form S-8 pertaining to any such Incentive Plan, (B) Common Stock in respect of tax withholding payments due upon the exercise of options or the vesting of restricted stock grants pursuant to any Incentive Plan; (C) Common Stock in exchange for LLC Units in accordance with the Exchange Agreement and (D) Common Stock in an amount equal to up to five percent of the outstanding shares of Common Stock outstanding on the Closing Date immediately after this offering, or securities convertible into or exercisable or exchangeable for such amount of Common Stock, in connection with mergers or acquisitions, joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clause (iv) or (v), the recipient or acquiree of any such Common Stock or securities convertible into or exercisable or exchangeable for Common Stock is a party to or enters into an agreement substantially in the form of Exhibit A hereto with respect to such securities (the “Lock-up Agreement”). (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its best efforts to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with maintain the listing of the ~~Securities~~ Shares on the New York Stock ~~Exchange~~ Exchange. (l) The Company has caused each of the persons listed in Schedule V hereto to execute and ~~(viii) all other costs and expenses incident~~ deliver to you, on or prior to the ~~performance~~ date of this Agreement, a Lock-up Agreement substantially in the form attached hereto as Exhibit A. If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lock-up Agreement for an officer or director of the ~~obligations~~ Company, the Representatives shall provide the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days prior to the effectiveness of the release or waiver. (m) The Company ~~hereunder~~ will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for ~~which provision is~~ the Common Stock. (n) Neither the Company nor its affiliates have taken, and will not ~~otherwise made in~~ take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the unlawful stabilization or manipulation of the price of any securities of the Company. (o) The Company will deliver to each Underwriter (or its agent), on the date of execution of this ~~Section. It is understood~~Agreement, ~~however~~a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, ~~that except as provided in this Section~~together with copies of identifying documentation, ~~Section 6 entitled “Indemnity and Contribution,”~~ 20 and the ~~last paragraph of Section 8 below,~~ Company undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the ~~Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any~~ verification of the ~~Securities by them and any advertising expenses connected with any offers they may make.~~foregoing Certification

Appears in 1 contract

Sources: Underwriting Agreement (Alight, Inc. / Delaware)

Appears in 1 contract

Sources: Underwriting Agreement (CorMedix Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (a) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a ~~reasonable opportunity~~ copy or to ~~comment~~ which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Shares and (c) file on a timely basis all reports and any ~~such proposed amendment~~ definitive proxy or ~~supplement~~information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, the Company ~~shall~~ will not file any such ~~proposed~~ report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object; and~~ objected in writing or which is not in compliance with the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedExchange Act. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (a) not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (b) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (c) comply with the requirements of Rules 163, 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (d) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (diii) [Intentionally omitted.] (iv) The Company will ~~prepare a final term sheet~~ advise the Representatives promptly (a) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Securities~~Shares shall have become effective, ~~containing only information that describes~~ or any supplement to the ~~final terms~~ Prospectus shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Shares, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Shares for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or such suspension of qualification. (v) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act. (vi) If at any time when Shares remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form ~~consented~~ satisfactory to the Representatives, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives, and will ~~file~~ use its best efforts to cause such ~~final term sheet~~ registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (viii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required ~~by Rule 433(d)(5)(ii~~under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish upon request to the Representatives signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith. (ix) of The Company will comply with the Securities Act and the Rules and Regulations ~~following~~ and the ~~date such final terms have been established for all classes~~ Exchange Act, and the rules and regulations of the ~~offering~~ Commission thereunder, so as to permit the completion of the ~~Securities~~distribution of the Shares as contemplated in this Agreement and the Prospectus. ~~Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Subject to the ~~use by any Underwriter~~ provisions of Section 4(i) above, if during the period in which a ~~free writing~~ prospectus ~~that contains only~~ (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing the preliminary terms of~~ under the Securities Act) is required by law to be delivered by an Underwriter or ~~their offering or (y) information that describes the final terms~~ a dealer any event shall occur as a result of ~~the Securities or their offering and that is included~~ which, in the ~~final term sheet~~ judgment of the Company ~~contemplated in the first sentence of this subsection~~ or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the ~~Underwriters is (~~Underwriters, it becomes necessary to amend or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (x) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (b) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fxi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of ~~at least 12~~ twelve consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules and Regulations~~Securities Act. (gxii) The Company ~~will~~ will, for a period of five years from the Closing Date, furnish upon request to the ~~Representatives copies of the Registration Statement~~Representatives, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~practicable after the end of each fiscal year, ~~with respect~~ a copy of its annual report to ~~any amendment or supplement, during~~ shareholders for such year and the ~~period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The~~ Company will ~~pay the expenses of printing and distributing~~ furnish upon request to the ~~Underwriters all such documents~~Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (ixiii) The Company will use ~~its commercially reasonable efforts to effect~~ the ~~listing~~ net proceeds from the sale of the ~~Securities on~~ Shares pursuant to this Agreement in the ~~New York Stock Exchange within 30 days~~ manner specified under the heading “Use of Proceeds” in the ~~Closing Date~~Prospectus. (jxiv) ~~During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus~~No offering, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short~~ sale or ~~otherwise dispose, except as provided hereunder of,~~ other disposition of any Common Stock or any securities of the Company that are substantially similar to the ~~Securities~~Common Stock will be made for a period of 30 days after the date of this Agreement, ~~without~~ directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~the Representatives~~Deutsche Bank Securities Inc. and ▇. ~~(k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~▇. ▇▇▇▇▇▇ Securities LLC, except that the Company ~~will pay or cause to be paid all expenses incident to the performance of its obligations~~ may, without such consent, (a) issue securities under ~~this Agreement, including: (i) the fees, disbursements and expenses of~~ the Company’s ~~counsel~~ equity compensation plans for officers, employees, and non-employee directors described in the Company’s ~~accountants~~ Annual Report on Form 10-K for the fiscal year ended December 31, 2009; (b) issue shares upon the exercise of options or other stock rights issued pursuant to the Company’s equity compensation plans for officers, employees, and non-employee directors described in ~~connection~~ the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 and the Windrose Medical Properties Trust 2002 Stock Incentive Plan; (c) sell shares of Common Stock pursuant to the Second Amended and Restated Dividend Reinvestment and Stock Purchase Plan filed with the ~~registration and delivery~~ Commission on May 15, 2007; (d) issue shares of Common Stock upon conversion of any shares of 7.5% Series G Cumulative Convertible Preferred Stock outstanding as of the ~~Securities under the Securities Act and all other fees~~ date hereof; or ~~expenses in connection with the preparation and filing~~ (e) issue shares of ~~the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any~~ Common Stock upon conversion of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.any

Appears in 1 contract

Sources: Underwriting Agreement (Health Care Reit Inc /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the completion of the distribution of the Securities within the meaning of the Act. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the ~~Securities~~Prospectus, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing ~~Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ Prospectus, any Written Testing-the-Waters Communication or any amendment to the ~~use by~~ Prospectus has been filed, (D) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred for supplement to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus or for any additional information, including, but not limited to, any request for information concerning any Written Testing-the-Waters Communication, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectGeneral Disclosure Package. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities on~~ 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 ~~New York Stock Exchange within 30 days~~ effective date of the ~~Closing Date~~Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (j) ~~During~~ Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning from~~ covered by the ~~date hereof~~ most recent financial statements appearing in the Registration Statement, the General Disclosure Package and ~~continuing~~ the Prospectus. (k) No offering, pledge, sale, contract to ~~and including~~ sell, short sale or other disposition of any Ordinary Shares of the ~~date 30~~ Company or other securities convertible into or exchangeable or exercisable for Ordinary Shares or derivative of Ordinary Shares (or agreement for such) will be made for a period of 180 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the Representatives. (kl) ~~Whether~~ The Company will use reasonable best efforts to effect and maintain the listing of the Shares on the NASDAQ Global Market. (m) The Company has caused each officer, director and shareholder of the Company, and the trustee appointed in accordance with Section 102 of the Israeli Income Tax Ordinance [New Version] – 1961 in connection with the Company’s 2000 and 2011 share option plans, to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If Deutsche Bank Securities Inc. and ▇▇▇▇▇ Fargo Securities, LLC, in their discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver. (n) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and 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. (o) The Company shall not invest, or otherwise use the ~~transactions contemplated~~ proceeds received by the Company from its sale of the Shares in ~~this Agreement~~ such a manner as would require the Company to register as an investment company under the 1940 Act. (p) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Ordinary Shares. (q) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (r) The Company acknowledges, understands and agrees that the Shares may be offered and sold in Israel only by the Underwriters and only to (i) such Israeli investors listed in the First Addendum to the Israeli Securities Law (the “Addendum”) and who submit written confirmation to the Underwriters and the Company that such investor (A) falls within the scope of the Addendum and (B) is acquiring the Shares for investment for its own account or, if applicable, for investment for clients who are ~~consummated~~ investors listed in the Addendum and in any event not as a nominee, market maker or ~~this Agreement~~ agent and not with a view to, or for the resale in connection with, any distribution thereof (“Israeli Accredited Investors”); (ii) such investors referenced in Sections 15A(b)(2) and 15A(b)(3) of the Israeli Securities Law; (iii) such number of offerees in Israel who are not Israeli Accredited Investors (“Non-Sophisticated Israeli Investors”) that does not exceed 19 Non-Sophisticated Israeli Investors; and (iv) any of the 16 offerees referred to in Section 1(uu) above. It is ~~terminated~~hereby agreed by the Company that with respect to any offer or sale of Shares to Non-Sophisticated Israeli Investors and any of the 16 offerees referred to in Section 1(uu) above, the Underwriters may rely upon the representation and warranty of the Company in Section 1(uu) above. In addition, the Company will ~~pay~~ not engage in any form of solicitation, advertising or ~~cause to be paid all expenses incident to~~ other action constituting an offer or a sale under the ~~performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel~~ Israeli Securities Law and the ~~Company’s accountants~~ regulations promulgated thereunder in connection with the ~~registration and delivery~~ transactions contemplated hereby, which would require the Company to publish a prospectus in the State of Israel under the laws of the ~~Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing~~ State of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeIsrael.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Vascular Biogenics Ltd.)

Covenants of the Company. ~~In further consideration of~~ The Company agrees with the ~~agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows~~Manager while this Agreement is effective: (a) ~~The Company~~ To notify the Manager promptly of the time on or after the date of this Agreement when the Registration Statement or any amendment to the Registration Statement has been filed or ~~will~~ become effective or when the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any supplement to any of the foregoing has been filed; to prepare and file with the Commission, promptly upon the Manager’s request, any amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus that, in the Manager’s reasonable opinion, may be necessary or advisable in connection with the offering of the Shares by the Manager; and to cause the Basic Prospectus, the Prospectus Supplement and the Prospectus and each ~~Statutory~~ amendment or supplement to the Basic Prospectus, the Basic Prospectus ~~(including~~ or the ~~Prospectus)~~ Prospectus to be filed with the Commission as required pursuant to ~~and in accordance with~~ the applicable paragraph of Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it~~ Act (without reliance on Rule 424(b)(8)) or, in the case of any Incorporated Document, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed; to cause each Permitted Free Writing Prospectus to be filed with the Commission as required by Rule 433 of the Act (to the extent such filing is ~~first used~~ required by such rule) and to retain copies of each Permitted Free Writing Prospectus that is not required to be filed with the ~~execution and delivery of this Agreement. The Company has complied and will comply~~ Commission in accordance with Rule 433 of the ~~Rules and Regulations~~Act. (b) ~~The Company will~~ To promptly advise the ~~Representatives~~ Manager, confirming such advice in writing, of any suspension of the Manager’s obligations under Rule 15c2-8 under the Exchange Act or any request by the Commission for amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus (in each case including, without limitation, any Incorporated Document) or for additional information with respect thereto, or of notice of examination, institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to promptly advise the Manager of any proposal to amend or supplement the Registration Statement, the Basic Prospectus, the Prospectus or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file~~ Permitted Free Writing Prospectus (other than any ~~such proposed~~ amendment or supplement to ~~which~~ be effected by the ~~Representatives reasonably object; and the Company will also advise the Representatives promptly~~ Company’s filing of a report, document or proxy or information statement pursuant to Sections 13, 14 or 15(d) of the Exchange Act, which shall be subject to the provisions of clause (2) of Section 4(d) below), and to provide the Manager and its counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing of and not to file or use any such amendment or supplement (other than any prospectus supplement relating to the offering of other securities (including, without limitation, the Common Stock)) to which the Manager shall have objected in writing. (c) To make available to the Manager, as soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Manager, as many copies of the ~~institution by~~ Prospectus and each Permitted Free Writing Prospectus (or of the ~~Commission of~~ Prospectus or any ~~stop order proceedings in respect~~ Permitted Free Writing Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Manager may request for the purposes contemplated by the Act; in case the Manager is required to deliver (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be. (d) (1) Subject to clause (2) of this Section 4(d), to use reasonable best efforts to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and (2) to provide the Manager, for its review and comment, with a copy of any ~~part thereof~~ reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Manager shall have objected in writing, and to promptly notify the Manager of such filing. (e) To pay the fees applicable to the Registration Statement in connection with the offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule 456(b) and Rule 457(r) under the Act. (f) The Company will (a) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Manager, (b) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (c) promptly notify the Manager of such effectiveness. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (g) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Manager, the Company will, prior to the Renewal Deadline file, if it has not already done so and upon mutual agreement with the Manager, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Manager, and will use its best efforts to ~~prevent~~ cause such registration statement to be declared effective within 180 days after the ~~issuance~~ Renewal Deadline. Upon mutual agreement with the Manager, the Company will take all other action necessary or appropriate to permit the public offering and sale of ~~any such stop order and~~ the Shares to ~~obtain~~ continue as ~~soon as possible its lifting, if issued~~contemplated in the expired registration statement. (ch) ~~The Company represents and agrees that, unless it obtains~~ To promptly notify the ~~prior consent~~ Manager of the ~~Representatives~~happening of any event that could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, ~~and each Underwriter represents and agrees that, unless it obtains~~ in the ~~prior consent~~ light of the ~~Company~~ circumstances under which they are made, not misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the ~~Representatives~~Company’s expense, ~~it has not made and will not make any offer relating~~ to the ~~Securities that would constitute an Issuer Free Writing Prospectus,~~ Manager promptly such amendments or ~~that would otherwise constitute a “free writing prospectus,”~~ supplements to such Prospectus as ~~defined in Rule 405~~ may be necessary to reflect any such change; and to promptly notify the Manager of the ~~Rules and Regulations, required to be filed with~~ happening of any event that could require the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each making of any change in any Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information so that ~~describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file~~ such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus ~~for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x)~~ would not conflict with information ~~describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included~~ contained in the ~~final term sheet of~~ Registration Statement, the ~~Company contemplated in~~ Prospectus or the ~~first sentence of this subsection~~ Incorporated Documents or ~~(ii) other information~~ so that ~~is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any~~ such ~~free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer~~ Permitted Free Writing Prospectus ~~for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172~~ would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the Company’s expense, to the Manager promptly such amendments or ~~if for any other reason it shall~~ supplements to such Permitted Free Writing Prospectus as may be necessary ~~during the same period~~ to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, eliminate any such ~~amendment~~ conflict or ~~supplement shall constitute a waiver of~~ reflect any ~~of the conditions set forth in Section 5 hereof~~such change. (fi) ~~As soon~~ To furnish such information as ~~practicable, but not later than 16 months, after~~ may be required and otherwise to cooperate in qualifying the ~~date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement~~ Shares for offering and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the securities or blue sky laws of such states or other jurisdictions as the ~~Representatives reasonably~~ Manager may designate and ~~will continue~~ to maintain such qualifications in effect so long as required for the ~~distribution~~distribution of the Shares; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify as a foreign corporation or to ~~do business~~ consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Manager of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or ~~to file~~ the initiation or ~~consent or otherwise subject itself to service~~ threatening of ~~process or taxation in~~ any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Dateproceeding for such purpose. (j) ~~During~~ To make generally available to its security holders an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning ~~from the date hereof and continuing to and including the date 30 days~~ after the effective date of the ~~Prospectus~~Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period but not later than eighteen months after the effective date of the Registration Statement (as such date is defined in Rule 158(c) under the Act). (k) To apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of proceeds” in the Prospectus Supplement. (l) At all times when the Company has instructed the Manager to make sales of the Shares and at all times when sales of the Shares are pending settlement, not to ~~offer~~sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to ~~purchase, make any short sale~~ sell or otherwise ~~dispose~~dispose of or agree to dispose of, ~~except as provided hereunder~~ directly or indirectly, or permit the registration under the Act of, any shares of Common Stock or any other securities of the Company that are substantially similar to the Common Stock (“Similar Securities”) or any securities convertible into or exchangeable or exercisable for Common Stock or Similar Securities (including without limitation, any options, warrants or other rights to purchase Common Stock or Similar Securities), in each case without giving the Manager at least three Trading Days’ prior written ~~consent~~ notice specifying the nature of the ~~Representatives~~proposed sale and the date of such proposed sale. Notwithstanding the foregoing, the Company may (i) register the offer and sale of the Shares through the Manager pursuant to this Agreement; (ii) file a registration statement on Form S-8 relating to Common Stock that may be issued pursuant to equity compensation plans existing as of the date of this Agreement and described in the Company’s reports filed with the Commission under the Exchange Act; (iii) issue securities under the Company’s equity compensation described in the Company’s reports filed with the Commission under the Exchange Act; (iv) issue shares upon the exercise of warrants, options or other convertible securities outstanding as of the date of this Agreement and described in the Company’s reports filed with the Commission under the Exchange Act or issued after the date of this Agreement and (v) Common Stock issued in connection with any acquisition, strategic investment or other similar transaction (including any joint venture, strategic alliance or partnership) and or as consideration for mergers, acquisitions, other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising purposes. In the event that notice of a proposed sale is provided by the Company pursuant to this Section 4(l), the Manager may suspend activity under this Agreement for such period of time as may be requested by the Company or as may be deemed appropriate by the Manager. (km) ~~Whether~~ Not, at any time at or ~~not~~ after the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance~~ execution of ~~its obligations under~~ this Agreement, ~~including:~~ to offer or sell any Shares by means of any “prospectus” (i) within the ~~fees, disbursements and expenses~~ meaning of the ~~Company’s counsel and~~ Act), or use any “prospectus” (within the ~~Company’s accountants~~ meaning of the Act) in connection with the ~~registration and delivery~~ offer or sale of the ~~Securities under~~ Shares, in each case other than the ~~Securities Act~~ Prospectus or a Permitted Free Writing Prospectus. (n) The Company will not, and ~~all other fees~~ will cause its Subsidiaries not to, take, directly or ~~expenses~~ indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in ~~connection with~~ the ~~preparation and filing~~ stabilization or manipulation of the ~~Indenture, the Registration Statement,~~ price of any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees security of the Company ~~for~~ to facilitate the sale or resale of the Shares. (o) To use its best efforts to cause the Common Stock to be listed on the NYSE and to maintain such listing. (p) To advise the Manager immediately after it shall have received notice or obtain knowledge thereof, of any ~~“road show” undertaken in connection with~~ information or fact that would alter or affect any opinion, certificate, letter and other document provided to the ~~marketing~~ Manager pursuant to Section 6 herein. (q) Upon commencement of the offering of the ~~Securities~~Shares under this Agreement, and ~~one~~each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than by the filing with the Commission of any document incorporated by reference therein, which shall be subject to the provisions of subclause (ii) below, and other than a prospectus supplement filed pursuant to Rule 424(b) under the Act relating solely to the offering of securities other than the Shares), (ii) the Company (A) files an annual report on Form 10-~~half~~ K under the Exchange Act; (B) files a quarterly report on Form 10-Q under the Exchange Act; or (C) files a Current Report on Form 8-K containing amended or restated financial information (other than an earnings release to “furnish” information pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144), , or (iii) the Manager may reasonably request (the date of commencement of the ~~cost~~ offering of ~~any aircraft chartered~~ the Shares under this Agreement and each date referred to in ~~connection with the road show~~subclauses (i), (~~vii~~ii) ~~any fees~~ and ~~expenses incurred in connection with~~ (iii) above, each a “Representation Date”), to furnish or cause to be furnished to the ~~listing~~ Manager forthwith a certificate of two of the ~~Securities on~~ Company’s executive officers, dated and delivered the ~~New York Stock Exchange and (viii) all other costs and expenses incident~~ Representation Date, in form satisfactory to the ~~performance~~ Manager to the effect that the statements contained in the certificate referred to in Section 6(g) of this Agreement which was last furnished to the Manager are true and correct as of such Representation Date as though made at and as of such date (except that such certificate shall state that such statements shall be deemed to relate to the Registration Statement and the Prospectus and to all Permitted Free Writing Prospectuses, in each case as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the ~~obligations~~ same tenor as the certificate referred to in Section 6(g) of this Agreement, modified as necessary to relate to the ~~Company hereunder for which provision is not otherwise made~~ Registration Statement and the Prospectus and to all Permitted Free Writing Prospectuses, in ~~this Section. It is understood~~each case as amended and supplemented to the time of delivery of such certificate; provided, however, that ~~except~~ the obligation under this Section 4(q) shall be deferred for any Suspension and shall recommence upon the termination of such Suspension. (r) At each Representation Date, to furnish or cause to be furnished forthwith to the Manager a written opinion of Gracin & M▇▇▇▇▇, LLP, counsel to the Company (“Company Counsel”), or other counsel satisfactory to the Manager, dated and delivered as ~~provided~~ of such Representation Date, in ~~this Section~~form and substance satisfactory to the Manager, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the ~~Securities by them and any advertising expenses connected with any offers they may make.~~same tenor as the opinion referred to in Section 6(c) of this Agreem

Appears in 1 contract

Sources: Equity Distribution Agreement (iBio, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the ~~Representatives is hereinafter referred~~ Commission under Rule 433 under the Act unless the Representative approves its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in the Underwriters or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriters that such Underwriters otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the Underwriters promptly (A) when any post-effective amendment to the Registration Statement shall have been declared effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use commercially reasonable efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (d) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representative may reasonably request for distribution of the ~~Securities and otherwise in a form consented~~ Shares. (e) The Company will deliver to, or upon the order of, the Underwriters, from time to by time, as many copies of any Preliminary Prospectus as the ~~Representatives~~Underwriters may reasonably request. The Company will deliver to, ~~and will file such final term sheet within~~ or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Underwriters, from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Underwriters may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing~~ Underwriters at or before the ~~preliminary terms~~ Closing Date, four signed copies of the ~~Securities or their offering or (y) information that describes~~ Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~final terms~~ Underwriters such number of copies of the ~~Securities or their offering and that is included in the final term sheet~~ Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriters may reasonably request. (f) The Company ~~contemplated in~~ will comply with the ~~first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by any Underwriter or a dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsapplicable law. (h) The Company will ~~arrange for~~ 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 ~~qualification~~ effective date of the ~~Securities for sale~~ 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 Rule 158 under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectAct. (i) ~~The Company will use its commercially reasonable efforts~~ Prior to ~~effect the listing of the Securities on the New York Stock Exchange within 30 days of~~ the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any reportable period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) ~~During~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 45 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Representative. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof as described in or as contemplated by the Prospectus, or (C) the grant of options to purchase shares of Common Stock, or of restricted shares of Common Stock, pursuant to the Company’s 2006 Stock Incentive Plan, as amended and restated, provided that, prior to the grant of any such stock option or restricted shares of Common Stock, the Company shall cause the recipients of such grants who are directors or executive officers of the Company to execute and deliver to the Underwriters “lock-up” agreements, each substantially in the form of Exhibit A hereto. (k) ~~Whether or not~~ The Company will use its best efforts to list the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ Shares on the Nasdaq Global Select Market and its commercially reasonable efforts to maintain the listing of the Shares on the Nasdaq Global Select Market. (l) The Company will use commercially reasonable efforts to cause each executive officer and director of the Company ~~will pay or cause~~ to ~~be paid all expenses incident~~ furnish to the ~~performance~~ Underwriters, on or as soon as possible after the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (m) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, General Disclosure Package and the Prospectus. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (p) The Company will not take, directly or indirectly, any ~~preliminary prospectus~~action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any~~ stabilization or manipulation of the ~~foregoing, including all printing costs associated therewith, and the mailing and delivering~~ price of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ any securities of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Targacept Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each Underwriter ~~as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and As soon as reasonably possible after the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to Rule 424 under the Securities Act ("Rule 424"), setting forth, among other things, the necessary information with respect to the terms of offering of the Securities. Upon request, the Company will promptly deliver to the Representative and to counsel for the Underwriters, to the extent not previously delivered, one fully executed copy or one conformed copy, certified by an officer of the Company, of the Registration Statement, as originally filed, and of all amendments thereto, if any, heretofore or hereafter made (other than those relating solely to Registered Securities other than the Securities), including any post-effective amendment (in each case including all exhibits filed therewith and all documents incorporated therein not previously furnished to the Representative), including signed copies of each consent and certificate included therein or filed as an exhibit thereto, and will deliver to the Representative for distribution to the Underwriters as many conformed copies of the foregoing (excluding the exhibits, but including all documents incorporated therein) as the Representative may reasonably request. The Company ~~has complied~~ will also send to the Underwriters as soon as practicable after the date of this Agreement and ~~will comply with Rule 433~~ thereafter from time to time as many copies of the ~~Rules~~ Prospectus and ~~Regulations~~the Preliminary Prospectus as the Representative may reasonably request for the purposes required by the Securities Act. (b) ~~The Company will advise~~ During such period (not exceeding nine months) after the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes commencement of the offering of the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and~~ Securities as the Underwriters may be required by law to deliver a ~~Permitted Free Writing Prospectus for purposes~~ Prospectus, if any event relating to or affecting the Company, or of ~~this Agreement. The~~ which the Company ~~also consents to~~ shall be advised in writing by the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included Representative shall occur, which in the ~~final term sheet of the Company contemplated in the first sentence of this subsection or~~ Company's reasonable opinion (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of after consultation with counsel for the Representative) 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, or if it is necessary to amend the Prospectus to comply with the Securities Act, the Company will forthwith at its expense prepare and furnish to the Underwriters ~~is (~~and dealers named by the Representative a reasonable number of copies of a supplement or ~~but for~~ supplements or an amendment or amendments to the ~~exemption in Rule 172 would be) required to be delivered under~~ Prospectus that will supplement or amend the Prospectus so that as supplemented or amended it will comply with the Securities Act ~~in connection with sales by~~ and will not contain any ~~Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or 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 the Prospectus is delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the commencement of the offering of the Securities, the Company, upon the request of the Representative, will furnish to the Representative, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or ~~if for any other reason it shall be necessary during~~ supplements or amendments to the ~~same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply~~ Prospectus, complying with ~~the provisions~~ Section 10(a) of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (fc) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as reasonably practicable, but in any event not later than 16 months after the end of the fiscal quarter in which the filing of the Prospectus pursuant to Rule 424 occurs, an earning statement ~~covering a period of at least 12 months beginning after the date of this Agreement and satisfying~~ (in form complying with the provisions of Section 11(a) of the Securities ~~Act and Rule 158~~ Act, which need not be certified by independent public accountants) covering a period of twelve months beginning not later than the first day of the ~~Rules~~ Company's fiscal quarter next following the filing of the Prospectus pursuant to Rule 424. (d) The Company will use its best efforts promptly to do and ~~Regulations~~perform all things to be done and performed by it hereunder prior to the Closing Date and to satisfy all conditions precedent to the delivery by it of the Securities. (e) As soon as reasonably possible after the Closing Date, the Company will cause the Forty-Third Supplemental Indenture to be recorded in all recording offices in the State of Florida in which the property intended to be subject to the lien of the Mortgage is located. (f) The Company will advise the Representative, or the Representative's counsel, promptly of the filing of the Prospectus pursuant to Rule 424 and of any amendment or supplement to the Prospectus or Registration Statement or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be entered, use its best efforts to obtain the prompt removal thereof. (g) The Company will ~~furnish~~ use its best efforts to qualify the ~~Representatives copies of the Registration Statement~~Securities, ~~including all exhibits~~as may be required, ~~any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus~~ for offer and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the Blue Sky or legal investment laws of such jurisdictions as the ~~Representatives reasonably~~ Representative may designate and will ~~continue~~ file and make in each year such ~~qualifications in effect so long~~ statements or reports as are or may be reasonably required ~~for~~ by the ~~distribution~~laws of such jurisdictions; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify ~~to do business~~ as a foreign corporation or dealer in ~~any jurisdiction~~ securities, or to file ~~or consent or otherwise subject itself~~ any general consents to service of ~~process or taxation in~~ process, under the laws of any ~~jurisdiction where it is not already so subject~~jurisdiction. (ih) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar Prior to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing termination of the offering of the Securities, the Company will not file any amendment to the Registration Statement or supplement to the Prospectus which shall not have previously been furnished to the Representative or of which the Representative shall not previously have been advised or to which the Representative shall reasonably object in writing and ~~one-half~~ which has not been approved by the Underwriter(s) or their counsel acting on behalf of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeUnderwriters.

Appears in 1 contract

Sources: Underwriting Agreement (Florida Power Corp /)

Covenants of the Company. ~~In further consideration of the agreements~~ The Company agrees with each of the Underwriters ~~herein contained,~~ of the ~~Company covenants with each Underwriter as follows~~Securities that: (a) ~~The Company has filed or~~ It will prepare the final Prospectus and will file ~~each Statutory~~ the final Prospectus ~~(including~~ pursuant to, and within the ~~Prospectus) with the Commission pursuant to and in accordance with~~ time frame specified by, Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ Securities Act Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make Before making any offer relating to the Securities that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of under the ~~Rules and Regulations~~Securities Act, required to be filed with the Commission~~. Any such~~ , the Company agrees that it will furnish to the Representatives a copy of the proposed Issuer Free Writing Prospectus or other free writing prospectus and will not make any such offer by means of such Issuer Free Writing Prospectus or other free writing prospectus to which the Representatives reasonably object in a timely manner; provided, however, that the Issuer Free Writing Prospectuses listed in Annex A shall be deemed consented to by the ~~Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.”~~ Representatives. The Company represents that it has treated and agrees that it will treat each ~~Permitted~~ permitted free writing prospectus as an Issuer Free Writing Prospectus ~~as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations,~~ and has complied and will comply with the requirements of ~~Rules 164 and~~ Rule 433 of under the ~~Rules and Regulations~~ Securities Act applicable to ~~any Permitted Free Writing Prospectus~~each and every permitted free writing prospectus, including timely filing with the Commission ~~filing~~ where required, legending and record keeping. (c) It will not file any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus to which the Representatives reasonably object in a timely manner, unless the Company is required by law to make such filing. (d) ~~The Company~~ It will ~~prepare a final term sheet relating to~~ advise the ~~Securities, containing only information that describes the final terms~~ Representatives promptly of ~~the Securities and otherwise in a form consented to by the Representatives,~~ any such amendment or supplement and will ~~file such final term sheet within~~ furnish the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementRepresentatives with copies thereof. (e) IfIt promptly will file all reports and any definitive proxy or information statements required to be filed with the Commission pursuant to Section 13(a), ~~at any time when~~ 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus ~~relating to the Securities as in the opinion of counsel for the Underwriters~~ is required (or but for the exemption in Rule 172 would bebe required) ~~required~~ in connection with the offering or sale of the Securities (the “Prospectus Delivery Period”), and during such same period it will advise the Representatives, promptly after it receives notice thereof, of: i. the time when any amendment to ~~be delivered under~~ the Registration Statement has been filed or becomes effective or any amendment or supplement to the Time of Sale Information or the Prospectus or any Issuer Free Writing Prospectus has been filed with the Commission; ii. the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Registration Statement or any Preliminary Prospectus or the Prospectus relating to the Securities or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act and, in ~~connection with sales by~~ the event of the issuance of any ~~Underwriter~~ such stop order or ~~dealer~~of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, promptly use its best efforts to obtain the withdrawal of such order; iii. the occurrence of any event ~~occurs~~ within the Prospectus Delivery Period as a result of which the ~~General Disclosure Package~~ Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, iv. the suspension of the qualification of such Securities for offering or sale in any jurisdiction or, to the knowledge of the Company, the initiation or threatening of any proceeding for any such purpose; and v. any request by the Commission with respect to amending or supplementing the Registration Statement, Time of Sale Information or Prospectus or for additional information. (f) It promptly will take such action as the Representatives reasonably may request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives reasonably may request and will use commercially reasonable efforts to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be reasonably necessary to complete the distribution of the Securities. 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 jurisdiction or subject itself to taxation in any jurisdiction if it is not otherwise so subject. (g) During the Prospectus Delivery Period, it will deliver written and electronic copies of the Prospectus to the Underwriters, in such quantities as the Representatives reasonably may request. During the Prospectus Delivery Period, if any event shall have occurred as a result of which the Time of Sale Information or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made when such Prospectus is delivered, not misleading, or if for any other reason it shall be necessary during ~~the~~ such same period to amend or supplement the ~~General Disclosure Package~~ Registration Statement, the Time of Sale Information or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus in order to comply with ~~the provisions of~~ the Securities Act, the Exchange Act or the Trust Indenture Act, the Company ~~promptly~~ will notify the Representatives ~~of such event~~and prepare and, ~~and if such event shall occur or if~~subject to (c) above, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company will promptly prepare and file with the ~~Commission~~Commission (to the extent required) and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives from time to time reasonably may request of an amended Registration Statement, ~~at its own expense, an amendment~~ the Time of Sale Information or Prospectus or a supplement ~~which~~ to the Registration Statement or Prospectus that will correct such statement or omission or ~~an amendment which will~~ effect such ~~compliance. Neither the Representatives consent to~~compliance or filing, ~~nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~as applicable. (fh) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders and the Representatives as soon as practicable an ~~earning~~ earnings statement ~~covering a period of at least 12 months beginning after the date of this Agreement and satisfying~~ (which need not be audited) that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the ~~Rules and Regulations.~~ Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (gas defined in Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) ~~The Company will use its commercially reasonable efforts to effect~~ Other than the ~~listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During~~ Securities, during the period beginning from the date hereof ~~and continuing to~~ through and including the ~~date 30 days after~~ Closing Date, the ~~date of the Prospectus,~~ Company will not to offer, sell, contract to ~~sell, pledge, grant any option to purchase, make any short sale~~ sell or otherwise ~~dispose, except as provided hereunder of,~~ dispose of any debt securities of issued or guaranteed by the Company that mature more than one year and that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Underwriting Agreement (Horace Mann Educators Corp /De/)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each Underwriter as follows: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Securities Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, and (ii) not file any amendment to the Registration Statement or any documents incorporated by reference therein or distribute an amendment or supplement to the Time of Sale Prospectus or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used~~ not in compliance with the rules and ~~the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433~~ regulations of the ~~Rules and Regulations~~Securities Act. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Securities Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Securities Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the 90-day restricted period referred to in Section 5(k) hereof. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (i) when any post-effective amendment to the ~~Securities~~Registration Statement shall have become effective, ~~containing only information~~ (ii) of receipt of any comments from the Commission, (iii) when any supplement to the Prospectus, any Issuer Free Writing Prospectus, or any amendment to the Prospectus has been filed, (iv) of any request of the Commission for amendment of the Registration Statement or for supplement to the Time of Sale Prospectus or the Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus, or of the institution of any proceedings for that ~~describes the final terms~~ purpose or pursuant to Section 8A of the Securities ~~and otherwise in a form consented to by the Representatives~~Act, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(vi) of the ~~Rules and Regulations following~~ occurrence of any event or development within the ~~date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing~~ Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only~~ Delivery Period (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined ~~in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i~~below) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the ~~General Disclosure Package~~ Prospectus, the Time of Sale Prospectus or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the Time of Sale Prospectus or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order, suspension or qualification referred to in clause (v) or (vii) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) (the “Prospectus Delivery Period”) is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Securities Act and the rules and regulations of the Commission promulgated thereunder, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the ~~General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the~~ Prospectus in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly~~ prepare and file with the ~~Commission~~Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at ~~its own expense~~a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of the Underwriters, it becomes necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Time of Sale Prospectus to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the Time of Sale Prospectus so that the Time of Sale Prospectus as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Time of Sale Prospectus will comply with law. (fi) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of under the ~~Rules~~ Securities Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gj) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ the Time of Sale Prospectus and the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (hk) ~~The Company~~ No offering, pledge, sale, contract to sell, 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 ~~arrange~~ be made for ~~the qualification~~ a period of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of each of the Representatives~~. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understoodprovided, however, that ~~except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they Company may ~~make.~~(i) effect the

Appears in 1 contract

Sources: Underwriting Agreement (Syndax Pharmaceuticals Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with the Representatives and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) ~~The~~ In respect to each offering of Underwritten Securities, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as the ~~Prospectus~~Representatives shall reasonably request. (b) If, at the time the Prospectus Supplement was filed with the Commission pursuant to ~~and in accordance with~~ Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then not later than the second business day following the ~~earlier of the date it is first used and the~~ execution and delivery of ~~this~~ the Terms Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the 1933 Act Regulations, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. If required, the Company will prepare and file or transmit for filing a Rule 462(b) Registration Statement by 10:00 p.m. on the date of execution of the Terms Agreement. ~~The~~ If a Rule 462(b) Registration Statement is filed, the Company ~~has complied and will comply with~~ shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule ~~433~~ 111 of the ~~Rules and~~ 1933 Act Regulations. (bc) The Company will ~~advise~~ notify the Representatives ~~promptly~~ immediately, and confirm such notice in writing, of (i) the effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any such stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible its lifting, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingmoment. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at At any time when ~~a prospectus relating to~~ the ~~Securities as in the opinion of counsel for the Underwriters~~ Prospectus is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities~~ 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any ~~Underwriter~~ such amendment or ~~dealer~~supplement or other documents in a form to which the Representatives or counsel for the Underwriters shall reasonably object. (e) The Company will furnish to each 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 (as amended or supplemented) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. (f) If any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~General Disclosure Package~~ reasonable opinion of counsel for the Underwriters, 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 delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as ~~then~~ so amended or ~~supplemented would~~ supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the time it is delivered to a purchaser, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, and the Company ~~promptly~~ will ~~notify~~ furnish to the ~~Representatives~~ Underwriters a reasonable number of copies of such ~~event, and if such event shall occur~~ amendment or ifsupplement. (g) The Company will endeavor, in ~~the opinion of counsel for~~ cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may designate; provided, however, that the Company shall not be obligated to (i) qualify as a foreign corporation in a jurisdiction it is ~~necessary at~~ not so qualified, (ii) file any ~~time~~ general consent to ~~amend~~ service of process or (iii) take any actions that would subject it to income taxation in any such jurisdiction. In each jurisdiction in which the ~~General Disclosure Package or the Prospectus to comply with the~~ Underwritten Securities ~~Act~~have been so qualified, the Company will ~~promptly prepare~~ file such statements and ~~file with~~ reports as may be required by the ~~Commission, at its own expense, an amendment or supplement which will correct~~ laws of such ~~statement or omission or an amendment which will~~ jurisdiction to continue such qualification in effect ~~such compliance. Neither~~ for so long as may be required for the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ distribution of the ~~conditions set forth in Section 5 hereof~~Underwritten Securities. (fh) ~~As soon as practicable, but not later than 16 months, after the date~~ With respect to each sale of ~~this Agreement~~Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules and~~ 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” (gas defined in said Rule 158) ~~The Company will furnish to the Representatives copies~~ of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use ~~its commercially reasonable efforts to effect~~ the ~~listing~~ net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under “Use of Proceeds.” (j) 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 Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (k) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, to the extent the Preferred Stock, Common Stock Warrants or Debt Securities are listed on the New York Stock ~~Exchange within 30 days~~ Exchange, the Company will use its best efforts to maintain the listing of any such Underwritten Securities listed on the ~~Closing Date~~New York Stock Exchange. (jl) In respect to each offering of Debt Securities, the Company will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee. (m) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation (“S&P”), ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable. (n) During the period ~~beginning from~~ specified in the ~~date hereof and continuing to and including the date 30 days after the date of the Prospectus~~applicable Prospectus Supplement, ~~not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ the Company ~~that are substantially similar to~~ and the ~~Securities~~Partnerships will not, without the prior written consent of the Representatives, or any one Representative, if so provided in the Prospectus Supplement, directly or indirectly, sell, offer to sell, transfer, hypothecate, grant any option for the sale of, or otherwise dispose of, (i) any securities of the same class or series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement) or any security convertible into or exchangeable for such Underwritten Securities; and (ii) if such Prospectus Supplement relates to Common Stock Warrants or Debt Securities or Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) grants of options, and the issuance of shares in respect of such options; (ii) the issuance of shares and units pursuant to a dividend reinvestment plan or stock purchase plan (except for optional waiver components, if any); (iii) the issuance of Common Stock on the exchange of Units; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property. (ko) ~~Whether or not~~ With respect to the ~~transactions contemplated in this Agreement~~ Common Stock issuable on exercise of Common Stock Warrants and the conversion of any Debt Securities and Preferred Stock if such securities are ~~consummated or this Agreement is terminated~~convertible into Common Stock, the Company will ~~pay~~ reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon exercise of the Common Stock Warrants and conversion of the Debt Securities or ~~cause to be paid all expenses incident~~ Preferred Stock. (p) With respect to the ~~performance~~ Common Stock issuable on exercise of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel~~ Common Stock Warrants and the ~~Company’s accountants in connection with the registration~~ conversion of any Debt Securities and ~~delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture~~Preferred Stock if such securities are convertible into Common Stock, the ~~Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Company will use its best efforts to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities list such Common Stock on the New York Stock ~~Exchange and~~ Exchange. (~~viii~~q) ~~all other costs and expenses incident~~ The Company will use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code. (r) During the period from the Closing Time until five years after the Closing Time, the Company will deliver to the ~~performance~~ Representatives, promptly upon their becoming available, copies of ~~the obligations~~ all current, regular and periodic reports of the Company ~~hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ mailed to its stockholders or filed with any securities exchange or with the ~~last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ Commission or any governmental authority succeeding to any of the ~~Securities by them and any advertising expenses connected with any offers they may make~~Commission’s functions.

Appears in 1 contract

Sources: Underwriting Agreement (Carramerica Realty Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has~~ will (A) prepare and timely file with the Commission under Rule 424(b) under the Securities Act a Prospectus relating to the Shares in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (B) during such period after the date hereof and prior to the date all Shares have been sold by the Underwriters, not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations, and (C) during such period after the date hereof and prior to the date all Shares have been sold by the Underwriters, file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) During such period after the date hereof and prior to the date all Shares have been sold by the Underwriters, the Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or ~~will file~~ that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission under Rule 433 under the Securities Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each ~~Statutory~~ Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including the ~~Prospectus~~requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~and in accordance with~~ Rule ~~424(b~~433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not ~~later than the second business day following the earlier of~~ have been required to file thereunder. During such period after the date ~~it is first used~~ hereof and prior to the ~~execution and delivery of this Agreement. The~~ date all Shares have been sold by the Underwriters, the Company ~~has complied and~~ will ~~comply with~~ satisfy the conditions in Rule 433 of under the ~~Rules and Regulations~~Securities Act to avoid a requirement to file with the Commission any electronic road show. (bc) ~~The~~ During such period after the date hereof and prior to the date all Shares have been sold by the Underwriters, the Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement, any notice that would prevent the use of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, or of the institution of any ~~part thereof and~~ proceedings for that purpose or pursuant to Section 8A of the Securities Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representatives may reasonably request for distribution of the ~~Securities and otherwise in a form consented to by~~ Shares. (e) The Company will deliver to, or upon the order of, the Representatives, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii)~~ from time to time, as many copies of the ~~Rules and Regulations following~~ Preliminary Prospectus as the ~~date such final terms have been established for all classes~~ Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of ~~the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representatives may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the ~~use by any Underwriter~~ Representatives such number of ~~a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ copies of the ~~Securities or their offering or~~ Registration Statement (~~y) information that describes the final terms~~ including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) The Company will comply with the Securities ~~or their offering~~ Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to~~ under the Securities ~~as in the opinion of counsel for the Underwriters~~ Act) is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with applicable law. (fh) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of under the Securities ~~for sale under the laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) ~~The Company will use its commercially reasonable efforts~~ If, prior to ~~effect the listing of the Securities on the New York Stock Exchange within 30 days of~~ the Closing Date, any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus are prepared by or available to the Company, the Company will furnish a copy of such unaudited interim financial statements of the Company to the Underwriters as soon as they have been so prepared or made available. (j) ~~During~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or 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 ~~beginning from the date hereof and continuing to and including the date 30~~ of 75 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities~~otherwise than hereunder, ~~without~~ with the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. The restrictions contained in the ~~Representatives~~preceding paragraph shall not apply to (a) the sale and issuance of the Shares to be sold hereunder; (b) the issuance of shares of Common Stock upon exchange, vesting, exercise or conversion of the Shares or outstanding warrants, notes, or other derivative securities disclosed in the Prospectus; (c) the issuance, exercise, or vesting of shares of, or options to purchase shares of, or other equity incentive awards pursuant to employee benefit plans disclosed in the Prospectus; (d) the filing of a registration statement on Form S-8 for the registration of shares of Common Stock issued pursuant to employee benefit plans disclosed in the Prospectus; or (e) the issuance by the Company of shares of Common Stock or securities convertible into, exchangeable for or that represent the right to receive Common Stock in connection with (1) the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, (2) the Company’s joint ventures, equipment leasing arrangements, licensing transactions, collaborations, debt financings and other strategic transactions; provided that the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clause (e) shall not exceed 5% of the total number of shares of Common Stock outstanding immediately following the completion of the transactions contemplated by this Agreement (including the Option Shares, if and to the extent any Option Shares are issued) and the Company shall cause each recipient of such securities to execute and deliver to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., on behalf of the Underwriters, on or prior to the issuance of such securities, a lock-up agreement on substantially the same terms as the Lock-Up Agreement (as defined below) attached hereto as Exhibit A to the extent and for the duration that such terms remain in effect at the time of the transfer. (k) ~~Whether~~ The Company will use its best efforts to list the Shares for quotation on the NASDAQ Global Select Market. (l) The Company has caused each officer and director of the Company to execute and deliver to you, on or ~~not~~ prior to the ~~transactions contemplated~~ date of this agreement, a letter or letters, substantially in ~~this Agreement are consummated or this Agreement is terminated~~the form attached hereto as Exhibit A (the “Lock-Up Agreement”). (m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and 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 Securities Act. (n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇. (o) The Company will ~~pay or cause to be paid all expenses incident to~~ maintain a transfer agent and, if necessary under the ~~performance~~ jurisdiction of ~~its obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ incorporation of the Company~~’s counsel and~~ , a registrar for the Common Stock. (p) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company~~’s accountants in connection with~~ . (q) If immediately prior to the ~~registration and delivery~~ third anniversary of the ~~Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing~~ initial effective date of ~~the Indenture,~~ the Registration Statement, any ~~preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any~~ of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to Shares remain unsold by the Underwriters, ~~including any transfer~~ the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives, will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or ~~other taxes payable thereon, (iii)~~ appropriate to permit the ~~cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees~~ public offering and ~~expenses~~ sale of the ~~Trustee and any agent of~~ Shares to continue as contemplated in the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) all other costs and expenses incident expired registration statement relating to the ~~performance of~~ Shares. References herein to the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeRegistration Statement shall include such new shelf registration statement.

Appears in 1 contract

Sources: Purchase Agreement (Fluidigm Corp)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will ~~file each Statutory Prospectus (including the Prospectus) with the Commission pursuant~~ use all commercially reasonable efforts to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement cause the Registration Statement, if not effective at the time this Agreement is executed, and any amendment to the Registration Statement, to become effective. Prior to the termination of the Offering, the Company will not make or file any amendment to the Registration Statement or Prospectus (other than the Prospectus Supplement), any Rule 462(b) Registration Statement or the ~~General Disclosure Package~~ Canadian MJDS Prospectus unless the Company has furnished you a copy for your review prior to filing and will ~~afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall~~ not file any such proposed amendment or supplement to which ~~the Representatives~~ you reasonably object~~; and~~ . Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Final Prospectus Supplement is otherwise required under Rule 424(b), the Company will ~~also~~ cause the Final Prospectus Supplement, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing and to be filed on Form 8-K as an exhibit thereto. The Company will not file any report that would be deemed to be incorporated by reference into the Registration Statement that is required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of Securities by the Underwriters of which the Representatives shall not previously have been advised and furnished a copy or to which the Representatives shall have reasonably objected or that is not in compliance with the Exchange Act or the rules and regulations of the Commission promulgated thereunder. The Company will promptly advise the Representatives ~~promptly~~ (1) when the Registration Statement, if not effective at the time this Agreement is executed, shall have become effective, (2) when the Final Prospectus Supplement, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission or when the Prospectus or any other information related to the offering of Securities or the Securities has been filed with any securities exchange or any other regulatory body in the U.S. or Canada, (3) when, prior to termination of the ~~filing~~ offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (4) of any ~~such amendment or supplement and of the institution~~ request by the Commission or its staff or any U.S. states securities commission or by the Canadian Securities Commissions or any other Canadian or foreign regulatory authority for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus Supplement, the Canadian MJDS Prospectus or for any additional information, (5) of the issuance by the Commission or any U.S. states securities commission or by the Canadian Securities Commissions or any other Canadian or foreign regulatory authority of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the institution or threatening of any ~~part thereof~~ proceeding for that purpose and (6) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use ~~its best~~ all commercially reasonable efforts to prevent the issuance of any such stop order ~~and~~ or the suspension of any such qualification and, if issued, to obtain as soon as possible ~~its lifting, if issued~~the withdrawal thereof. (cb) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will ~~not make any offer relating to~~ comply with the Securities ~~that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of~~ Act and the Rules and Regulations, ~~required to be filed with~~ the ~~Commission. Any such free writing prospectus consented to by the Company~~ Exchange Act and the ~~Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated~~ rules and ~~agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433~~ regulations of the ~~Rules~~ Commission thereunder, the Canadian Securities Laws and ~~Regulations, and has complied and will comply with~~ the ~~requirements of Rules 164 and 433~~ Trust Indenture Act so as to permit the completion of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms distribution of the Securities as contemplated in this Agreement, the Prospectus and ~~otherwise in a form consented to by~~ the ~~Representatives, and will file such final term sheet within~~ Canadian MJDS Prospectus. If during the period in which a prospectus is required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company, its counsel or in the opinion of the Representatives, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if ~~for~~ it is necessary at any ~~other reason it shall be necessary during the same period~~ time to amend or supplement the ~~General Disclosure Package or the~~ Prospectus ~~or to file under the Exchange Act any document incorporated by reference in the Prospectus in order~~ to comply with ~~the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act~~any law, the Company promptly (1) will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company (2) will ~~promptly~~ prepare and file with the ~~Commission, at its own expense,~~ Commission and the Canadian Securities Commissions an appropriate amendment to the Registration Statement or supplement ~~which~~ to the Prospectus and the Canadian MJDS Prospectus so that the Prospectus and the Canadian MJDS Prospectus, as the case may be, as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth~~ circumstances when it is so delivered, be misleading, or so that the Prospectus and the Canadian MJDS Prospectus will comply with the law and (3) supply any supplemented Prospectus and Canadian MJDS Prospectus to you in ~~Section 5 hereof~~such quantities as you may reasonably request. (fc) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and ~~Regulations~~Regulations and will advise you in writing when such statement has been so made available. (d) Prior to the Closing Date, the Company will furnish to the Underwriters, to the extent available, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (e) The Company will use reasonable efforts to cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (other than the United States and Canada) as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that: (i) the Company shall not be required to register, qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so registered, qualified or required to file such a consent and (ii) the Company shall not be required to prepare, file, or obtain a receipt for a prospectus or other registration document in any such other jurisdiction. (f) The Company will deliver, from time to time, as many copies of any Preliminary Prospectus Supplement and the Canadian Preliminary MJDS Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus or Canadian MJDS Prospectus is required under the Securities Act, or under Canadian Securities Laws, as the case may be, as many copies of the Prospectus and Canadian MJDS Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representatives may reasonably request. (g) The Company ~~will furnish~~ shall use its reasonable efforts, in cooperation with you, to qualify the ~~Representatives copies~~ Securities under the securities or blue sky laws of such jurisdictions within the United States as you may designate and to maintain such qualification in effect for so long as required for the sale of the ~~Registration Statement~~Securities; provided, ~~including all exhibits~~however, 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 or to subject itself to taxation in respect of doing business in any ~~related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents,~~ jurisdictions in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentswhich it is not otherwise so subject. (h) The Company ~~will arrange for~~ shall comply with the ~~qualification~~ requirements of NI 71-101 and NI 52-107, file the Canadian Final MJDS Prospectus with the Canadian Securities ~~for sale under the laws of such jurisdictions as the Representatives reasonably designate~~ Commissions in accordance with NI 71-101 and ~~will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business~~ NI 52-107 and in any ~~jurisdiction or~~ event not later than the date the Canadian MJDS Prospectus is first used in the Qualifying Provinces and obtain confirmation, to ~~file or consent or otherwise subject itself to service~~ the extent such confirmation can be obtained, of ~~process or taxation in any jurisdiction where it is not already so subject~~receipt thereof from the Canadian Securities Commissions. (i) The Company ~~will~~ shall use its ~~commercially~~ reasonable efforts to ~~effect~~ maintain its status as a reporting issuer, or its equivalent, under the ~~listing~~ securities laws of the Qualifying Provinces, and to timely comply with its continuous disclosure and other obligations under Canadian Securities ~~on the New York Stock Exchange within 30 days of the Closing Date~~Laws. (j) During the period ~~beginning~~ of two years from the ~~date hereof and continuing~~ Closing Date the Company shall furnish to ~~and including the date 30 days after the date~~ you copies of any reports to holders of the ~~Prospectus~~Securities, ~~not~~ and deliver to ~~offer~~you as soon as they are available, ~~sell~~copies of any periodic reports and financial statements furnished to or filed with the Commission, ~~contract to sell, pledge, grant~~ the Canadian Securities Commissions or any ~~option to purchase, make~~ national or foreign securities exchange on which any ~~short sale or otherwise dispose, except as provided hereunder of, any~~ class of securities of the Company ~~that are substantially similar~~ is listed to the ~~Securities, without~~ extent such documents are not available on the ~~prior written consent of the Representatives~~Commission's website. (k) ~~Whether or not~~ The Company shall apply the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance~~ net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery~~ sale of the Securities as described under the ~~Securities Act and~~ heading "Use of Proceeds" in the Prospectus. (l) The Company shall use all ~~other fees or expenses~~ reasonable efforts in ~~connection~~ cooperation with the ~~preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Underwriters to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of permit the Securities to be eligible for clearance and settlement through DTC in the ~~Underwriters~~United States and through the Canadian Depository for Securities Limited in Canada, ~~including any transfer or other taxes payable thereon, (iii)~~ as the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they case may ~~make~~be.

Appears in 1 contract

Sources: Debt Underwriting Agreement (Mercer International Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representative containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Units by the Underwriters. (b) The Company will not make any offer relating to the Units that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act). The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final ~~term sheet relating~~ form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the ~~Securities~~Representative at or before the Closing Date, ~~containing only information that describes the final terms~~ one signed copy of the ~~Securities~~ Registration Statement and ~~otherwise in a form consented to by the Representatives~~all amendments thereto including all exhibits filed therewith, and will ~~file~~ deliver to the Representative such ~~final term sheet within the period required by Rule 433(d)(5)(ii)~~ number of copies of the ~~Rules and Regulations following the date~~ Registration Statement (including such ~~final terms have been established for all classes~~ number of copies of the ~~offering~~ exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Representative may reasonably request. (f) The Company ~~also consents to~~ will comply with the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Units as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company will use its best efforts promptly to prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus. (g) If the General Disclosure Package is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company will use its best efforts promptly ~~prepare and~~ to prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsGeneral Disclosure Package. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ Effective Date, 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 ~~Securities for sale~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company shall apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (k) The Company shall cause the proceeds of the offering to be held in the Trust Account to be invested only in U.S. “government securities” within the meaning of Section 2(a)(16) of the 1940 Act having a maturity of 180 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the 1940 Act as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise use its best efforts to conduct its business (both prior to and after the consummation of an initial Business Combination) in a manner so that it will not become subject to the Investment Company Act. (l) Except as disclosed in the Registration Statement, the Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (m) For a period of five years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with maintain the registration ~~and delivery~~ of the Securities under the ~~Securities Act~~ provisions of the Exchange Act. (n) For a period of five years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and ~~all other fees or expenses in connection with~~ the ~~preparation and~~ filing of the ~~Indenture, the Registration Statement,~~ Company’s Form 10-Q quarterly report. (o) The Company will not consummate a Business Combination with any ~~preliminary prospectus, the Prospectus,~~ entity that is affiliated with any ~~Issuer Free Writing Prospectus and amendments and supplements to~~ Initial Stockholder or any of the ~~foregoing, including all printing costs associated therewith, and~~ Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of the ~~mailing and delivering of copies thereof~~ FINRA that such Business Combination is fair to the ~~Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ Company’s stockholders from a financial point of ~~the Securities to the Underwriters, including~~ view. The Company shall not pay any ~~transfer~~ Insider or ~~other taxes payable thereon, (iii) the cost~~ any of ~~printing certificates representing the Securities, (iv)~~ their affiliates or family members any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of or compensation from the Company for ~~any “road show” undertaken~~ services rendered to the Company prior to, or in connection ~~with~~ with, the ~~marketing~~ consummation of an initial Business Combination, other than payments pursuant to the ~~offering of~~ Services Agreement; provided that the ~~Securities, and one~~Insiders shall be entitled to reimbursement from the Company for their reasonable out-~~half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and~~ of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination. (p) For a period of five years from the ~~listing~~ Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, will furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the ~~Securities on~~ Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the ~~New York Stock Exchange~~ Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (~~viii~~ii) ~~all other costs~~ such additional documents and ~~expenses incident~~ information with respect to the ~~performance~~ Company and the affairs of ~~the obligations~~ any future subsidiaries of the Company ~~hereunder~~ as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. (q) For a period equal to five years from the date hereof or until such earlier time upon which the Company is required to be liquidated, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for ~~which provision~~ the registration of the Warrants under the Act. (r) The Company will maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants. (s) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is ~~not otherwise~~ engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide to FINRA, the Representative and their counsel complete details regarding any financial, investment, advisory, mergers & acquisition and/or business combination services provided or to be provided by the Underwriters or affiliates thereof to the Company, including a description of services, copies of agreements governing services, identification of the underwriter and related persons performing services, and disclosure of the services arrangements. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in ~~this Section~~the tender offer documents or proxy statement which the Company will file in connection with the Business Combination (t) The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance 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) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (u) The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public offering. It As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. At or prior to the commencement of separate trading of the Warrants and Common Stock, the Company shall promptly issue a press release and file a Current Report on Form 8-K announcing that separate trading of the Warrants and Common Stock will begin. (v) The Company shall advise FINRA if it is ~~understood~~aware that any 5% or greater stockholder of the Company (other than the Representative or its affiliates) becomes an affiliate or associated person of a FINRA member participating in the distribution of the Securities. (w) The Company hereby agrees that until the Company consummates a Business Combination, ~~however~~it shall not issue any Common Stock or any options or other securities convertible into Common Stock, or any preferred shares of the Company which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination. (x) The Company will seek to have all vendors, service providers, prospective target business or other entities with which it does business enter into an agreement waiving any right, title, interest or claim of any kind in or to any monies held in the Trust Account for the benefit of the holders (each, a “Public Stockholder”) of the Common Stock sold as part of the Units in the Offering (the “Public Shares”). (y) The Company shall not take any action or omit to take any action that ~~except~~ would cause the Company to be in breach or violation of its certificate of incorporation and bylaws. (z) If the Company elects to seek stockholder approval of a Business Combination as ~~provided~~ described in ~~this Section~~Section (cc), ~~Section 6 entitled~~ prior to the consummation of a Business Combination, the Company may instruct the trustee under the Trust Agreement that amounts necessary to purchase up to 15% of the Common Stock sold as part of the Units in the Offering (the “~~Indemnity and Contribution,~~Public Shares” and the ~~last paragraph~~ holder of ~~Section 8 below~~such shares, a “Public Stockholder”) (1,125,000 shares, or 1,293,750 shares if the ~~Underwriters will pay all~~ Underwriters’ over-allotment option is exercised in full) at any time commencing two business days after the filing of ~~their costs~~ a preliminary proxy statement for an initial Business Combination and ~~expenses~~ending on the business day immediately preceding the record date for the vote to be held to approve such initial Business Combination (such purchases being referred to herein as “Open Market Purchases”) be released to the Company from the Trust Account. Such Open Market Purchases (i) shall be made only in open market transactions at times when the Company is not in possession of material non-public information, ~~including fees~~ (ii) shall not be made during a restricted period under Regulation M under the Exchange Act and ~~disbursements~~ (iii) shall be made at prices (inclusive of ~~their counsel, transfer taxes payable on resale of any of~~ commissions) not to exceed an amount equal to (A) the ~~Securities by them and any advertising expenses connected with any offers they may make.~~aggregat

Appears in 1 contract

Sources: Underwriting Agreement (ROI Acquisition Corp.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Underwriters containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Underwriters approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Underwriters shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or any new registration statement relating to the Shares shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (cd) If at any time when Shares remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form reasonably satisfactory to the Underwriters, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (e) The Company ~~represents and~~ agrees ~~that, unless it obtains~~ to pay the ~~prior consent of~~ required filing fees to the ~~Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer~~ Commission relating to the ~~Securities~~ Shares within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (f) The Company will qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or take any other action that would ~~constitute an Issuer Free Writing Prospectus~~subject it to service of process in suits in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or ~~that would otherwise constitute~~ may be required to continue such qualifications in effect for so long a ~~“free writing prospectus,”~~ period as ~~defined in Rule 405~~ the Underwriters may reasonably request for distribution of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing ProspectusShares.” (g) The Company ~~represents that it has treated and agrees that it~~ will ~~treat each Permitted~~ deliver to the Underwriters, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as ~~an “issuer free writing prospectus,”~~ the Underwriters may reasonably request. The Company will deliver to the Underwriters during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as ~~defined~~ many copies of the Prospectus in ~~Rule 433~~ final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, as many copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriters may reasonably request. (h) The Company will comply with the Act and the Rules and Regulations, and ~~has complied~~ the Exchange Act and ~~will comply with~~ the ~~requirements of Rules 164~~ rules and ~~433~~ regulations of the ~~Rules and Regulations applicable~~ Commission thereunder, so as to ~~any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to~~ permit the ~~Securities, containing only information that describes the final terms~~ completion of the ~~Securities~~ distribution of the Shares as contemplated in this Agreement and ~~otherwise in a form consented to by~~ the ~~Representatives, and will file such final term sheet within~~ Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representatives, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will notify the Representatives and either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (i) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representatives, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with ~~the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act~~any law, the Company promptly will notify the Representatives ~~of such event~~and either (i) prepare, file with the Commission (if required) and ~~if such event shall occur~~ furnish to the Underwriters and any dealers an appropriate amendment or ~~if, in the opinion of counsel for the Underwriters, it is necessary at any time~~ supplement to ~~amend~~ the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fj) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months ~~beginning~~ after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules and Regulations~~Act. (gk) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies of the Registration Statement~~Underwriters, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~they have been prepared by or are available to the Company, ~~with respect~~ a copy of any unaudited interim financial statements of the Company for any period subsequent to ~~any amendment or supplement, during~~ the period ~~mentioned~~ covered by the most recent financial statements appearing in ~~Section 4(e) above~~ the Registration Statement and ~~in such quantities as~~ the ~~Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents~~Prospectus. (hl) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; providednot, ~~that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction~~ directly or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securitiesindirectly, without the prior written consent of the Representatives~~. (k) Whether or not~~ , for a period of 90 days after the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance~~ date of ~~its obligations under~~ this Agreement~~, including~~: (i) offer, pledge, sell, contract to sell, sell any option, or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock or any similar securities or any security convertible or exercisable or exchangeable for Common Stock (including, without limitations, any security that may be deemed to be beneficially owned by such persons or entities in accordance with the ~~fees~~rules and regulations of the Commission and securities that may be issued upon exercise of a stock option or warrant); (ii) enter into any swap or other agreement that transfers, ~~disbursements~~ in whole or in part, any of the economic consequences of ownership of Common Stock or any similar securities or any security convertible or exercisable or exchangeable for Common Stock; (iii) file with the Commission a registration statement under the Act relating to any additional Common Stock or securities convertible into, or exchangeable for, any Common Stock; or (iv) publicly disclose the intention to effect any transaction described in any preceding clauses (i) through (iii); in the case of each of the preceding clauses (i) through (iv), whether any such transaction is to be settled by delivery of Common Stock or such other securities, cash, or otherwise. The immediately preceding paragraph does not apply to (i) the issuance and ~~expenses~~ sale of the Shares in the Offering; (ii) the issuance of shares of Common Stock upon the exchange, conversion or redemption of convertible debentures, preferred stock or rights of the Company outstanding on the date of this Agreement; (iii) the issuance of shares of Common Stock upon exchange, conversion or redemption of partnership interests of The Macerich Partnership, L.P. and MACWH, L.P. outstanding on the date of this Agreement; (iv) the grant by the Company of employee or director stock options to purchase Common Stock, or grants of restricted or performance awards, long-term incentive plan units, stock appreciation rights or stock units pursuant to any of the Company’s ~~counsel and~~ employee or director stock option or similar plans as in effect on the ~~Company’s accountants in connection with~~ date of this Agreement; (v) the ~~registration and delivery~~ issuance of shares of Common Stock upon the ~~Securities under~~ exercise of stock options outstanding on the ~~Securities Act and all other fees~~ date of this Agreement or ~~expenses in connection with~~ issued after the ~~preparation and filing~~ date of ~~the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ this Agreement pursuant to any of the ~~foregoing, including all printing costs associated therewith, and~~ Company’s employee or director stock option or similar plans as in effect on the ~~mailing and delivering~~ date of ~~copies thereof to~~ this Agreement; (vi) the ~~Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ issuance of ~~the Securities to the Underwriters, including any transfer~~ shares of Common Stock or other ~~taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by~~ securities ~~rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee~~ in connection with ~~the Indenture and the Securities~~a merger, ~~(vi) travel and lodging expenses of officers and employees of~~ acquisition, joint venture or similar transaction involving the Company ~~for~~ or the registration of such securities; (vii) the filing of any ~~“road show” undertaken~~ registration statement or prospectus supplement in respect of (A) any Common Stock issuable in connection with any prior or future distribution declared by Macerich Partnership L.P. on its outstanding common units of limited partnership interest and long term incentive plan units of limited partnership in Macerich Partnership L.P. that, subject to conditions specified by the ~~marketing~~ Company, may be payable partially in cash and partially in Common Stock at the election of the ~~offering~~ holders thereof, (B) any Common Stock issuable upon redemption of outstanding partnership interests of Macerich Partnership, L.P. or MACWH, L.P. , or (C) the ~~Securities~~resale of Common Stock issuable upon the exercise of warrants in favor of certain beneficial owners of GI Partners for an aggregate of 1,250,000 shares of Common Stock or the resale of Common Stock issuable upon the exercise of warrants in favor of ▇▇▇▇▇▇▇ M-rich Investors LLC to purchase 935,358 shares of Common Stock, ~~and one-half of~~ or (viii) the ~~cost~~ filing of any ~~aircraft chartered~~ registration statement with respect to Common Stock or other securities pursuant to the Company’s employee or director stock option or similar plans as in ~~connection with~~ effect on the ~~road show~~date of this Agreement. (m) The Company will use its best efforts to have the Shares authorized for listing, ~~(vii) any fees and expenses incurred in connection with the listing~~ subject to notice of ~~the Securities~~ issuance, on the New York Stock ~~Exchange and~~ Exchange. (~~viii~~n) ~~all other costs and expenses incident~~ The Company has caused each individual listed on Exhibit D to furnish to you, on or prior to the ~~performance~~ date of this agreement, a letter or letters, in form and substance satisfactory to the Representatives, with respect to such person’s agreement not to undertake certain actions with respect to the sale of Common Stock, subject to certain exceptions, except with the prior written consent of Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (“Lockup Agreements”). (o) The Company shall apply the net proceeds of its sale of the ~~obligations~~ Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus. (p) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (q) The Company will use its best efforts to meet the requirements to continue to qualify as a REIT under the Code, unless the Company’s Board of Directors determines by resolution that it is in the best interests of the Company’s stockholders not to so qualify. (r) The Company will not take, directly or indirectly, any action intended to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company ~~hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and~~ to facilitate the ~~last paragraph~~ sale or resale of ~~Section 8 below~~the Shares. (s) Prior to the Closing Date, the ~~Underwriters will pay all of their costs~~ Company shall not, and ~~expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ shall not permit any of the ~~Securities by them and~~ Subsidiaries to, amend, supplement, waive or otherwise modify the charter, certificate or articles of partnership or formation, partnership or limited liability company agreement or other organizational documents of, or any ~~advertising expenses connected with any offers they may make.~~agreement or contract among the partners, members or shareholders of or other holders of an interes

Appears in 1 contract

Sources: Underwriting Agreement (Macerich Co)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, and (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Act and (ii) completion of the 180-day restricted period referred to in Section 4(k) hereof. (d) The Company will ~~prepare a final term sheet relating~~ advise the Representatives promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any comments from the Commission, (iii) when any supplement to the ~~Securities~~Prospectus, ~~containing only information that describes~~ any Issuer Free Writing Prospectus, or any amendment to the ~~final terms~~ Prospectus has been filed, (iv) of any request of the ~~Securities and otherwise in a form consented~~ Commission for amendment of the Registration Statement or for supplement to by the ~~Representatives~~General Disclosure Package or the Prospectus or for any additional information, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii~~(v) of the ~~Rules and Regulations following~~ issuance by the ~~date such final terms have been established for all classes~~ Commission of any stop order suspending the effectiveness of the ~~offering~~ Registration Statement or any order preventing or suspending the use of ~~the Securities. Any such final term sheet is an~~ any Preliminary Prospectus, any Issuer Free Writing ~~Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to~~ Prospectus, or the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ Prospectus, or of the ~~Securities~~ institution of any proceedings for that purpose or ~~their offering or (y) information that describes the final terms~~ pursuant to Section 8A of the ~~Securities or their offering and that is included in the final term sheet~~ Act, (vi) of the ~~Company contemplated in the first sentence~~ occurrence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event ~~occurs~~ or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (v) or (vii) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectlaw. (i) The Company will ~~use~~ make generally available to its ~~commercially reasonable efforts~~ security holders, as soon as it is practicable to ~~effect~~ do so, but in any event not later than 15 months after the ~~listing~~ effective date of the ~~Securities on~~ 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 ~~New York Stock Exchange within 30 days~~ effective date of the ~~Closing Date~~Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (j) ~~During~~ Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period ~~beginning from~~ covered by the ~~date hereof~~ most recent financial statements appearing in the Registration Statement, the General Disclosure Package and ~~continuing to and including the date 30 days after the date of~~ the Prospectus. (k) No offering, ~~not to offer~~pledge, ~~sell~~sale, contract to sell, ~~pledge, grant any option to purchase, make any~~ short sale or ~~otherwise dispose, except as provided hereunder of,~~ other disposition of any ~~securities~~ shares of Common Stock of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other ~~taxes payable thereon,~~ securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (~~iii~~or agreement for such) ~~the cost~~ will be made for a period of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.180

Appears in 1 contract

Sources: Equity Underwriting Agreement (Syndax Pharmaceuticals Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a "free writing prospectus" (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a "Permitted Free Writing Prospectus"); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timelv filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representatives may reasonably request for distribution of the ~~Securities and otherwise in a form consented to by~~ Shares. (e) The Company will deliver to, or upon the order of, the Representatives, ~~and~~ from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will ~~file such final term sheet within~~ deliver to, or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Representatives, from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representatives may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing~~ Representatives at or before the ~~preliminary terms~~ Closing Date, five signed copies of the ~~Securities or their offering or (y) information that describes~~ Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~final terms~~ Representatives such number of copies of the ~~Securities or their offering and that is included in the final term sheet~~ Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (f) The Company ~~contemplated in~~ will comply with the ~~first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be declared effective before the Shares may be sold, the Company will use its best efforts to cause the Registration Statement or such post-effective amendment to become effective as soon as possible, and the Company will advise you promptly and, if requested by you, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment thereto has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules). (h) Subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to provide you, for your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable amount of time prior to any ~~other reason~~ proposed filing; and to promptly notify you of such filing. (i) If necessary or appropriate, the Company shall file a registration statement pursuant to, and in accordance with, Rule 462(b) under the Act and pay the applicable fees in accordance with the Act. (j) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it ~~shall be~~ becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~General Disclosure Package. (fk) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gl) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies of the Registration Statement~~Underwriters, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as ~~possible~~they have been prepared by or are available to the Company, ~~with respect~~ a copy of any unaudited interim financial statements of the Company for any period subsequent to ~~any amendment or supplement, during~~ the period ~~mentioned~~ covered by the most recent financial statements appearing in ~~Section 4(e) above~~ the Registration Statement and ~~in such quantities as~~ the ~~Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents~~Prospectus. (hm) The Company ~~will arrange~~ shall not, for ~~the qualification~~ a period of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 180 days after the date hereof (the "Lock-Up Period"), without the prior written consent of ~~the Prospectus~~DBSI, ~~not~~ (i) sell, offer to ~~offer,~~ sell, contract or agree to sell, hypothecate, pledge, grant any option to ~~purchase, make any short sale~~ purchase or otherwise ~~dispose, except as provided hereunder~~ dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to ~~the Securities~~Common Stock, ~~without the prior written consent of the Representatives.~~ (kii) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay~~ file or cause to be ~~paid all expenses incident~~ declared effective a registration statement under the Act relating to the ~~performance~~ offer and sale of ~~its obligations under~~ any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock (other than a registration statement on Form S-8 with respect to employee benefit plans), (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, ~~including:~~ (iB) issuances of Common Stock upon the exercise of options or warrants or conversion of preferred stock disclosed as outstanding in the Registration Statement and the Prospectus, (C) the ~~fees~~issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement and the Prospectus, ~~disbursements~~ (D) the issuance of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company in connection with any acquisition, strategic partnership, joint venture or collaboration to which the Company is a party, or the acquisition or license of any products or technology by the Company, and ~~expenses~~ (E) the issuance of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company in connection with settlements of legal disputes to which the Company is now, or may hereafter, become a party; provided that the number of shares of Common Stock issued or underlying securities convertible, exchangeable or exercisable (including pursuant to warrants or other rights) for Common Stock issued in any case pursuant to clauses (D) or (E) shall not exceed [TO BE DISCUSSED], and provided further that, prior to the issuance of any such securities pursuant to clauses (D) or (E), the Company shall cause the recipients of such securities to execute and deliver to you Lock-Up Agreements (as defined below), each substantially in the form of Exhibit A hereto. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless DBSI waives, in writing, such extension. (n) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market and maintain such listing. (o) The Company has caused each officer and director and shareholder of the Company~~’s counsel~~ , other than those shareholders listed on Schedule 4(o), to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the "Lock-Up Agreement"). (p) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and 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. (q) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or the Subsidiary to register as an investment company under the 1940 Act. (r) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company~~’s accountants~~ , a registrar for the Common Stock. (s) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (t) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the ~~registration~~ Directed Share Program. (u) Prior to the time of purchase or any additional time of purchase, as the case may be, the Company shall issue no press release or other communication and ~~delivery~~ hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets, or liabilities of the ~~Securities under the Securities Act and all other fees~~ Company, or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the ~~Securities~~Shares, without your prior consent. (v) The Company shall cause each Directed Share Participant to execute a Lock-Up Agreement and ~~one-half of~~ otherwise cause the ~~cost of any aircraft chartered in connection with the road show~~Directed Shares to be restricted from sale, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understoodtransfer, ~~however~~assignment, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.ple

Appears in 1 contract

Sources: Underwriting Agreement (Biomimetic Therapeutics, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each ------------------------ Underwriter ~~as follows~~that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and As soon as possible after the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to Rule 424, setting forth, among other things, the necessary information with respect to the terms of offering of the Shares. The Company ~~has complied~~ will promptly deliver to the Representative and to counsel for the Underwriters, to the extent not previously delivered, one fully executed copy or one conformed copy, certified by an officer of the Company, of the Registration Statement, as originally filed, and of all amendments thereto, heretofore or hereafter made, (other than those relating solely to securities other than the Shares), including any post-effective amendment (in each case including all exhibits filed therewith and all documents incorporated therein not previously furnished to the Representative), including signed copies of each consent and certificate included therein or filed as an exhibit thereto, and will ~~comply with Rule 433~~ deliver to the Representative for distribution to the Underwriters as many conformed copies of the ~~Rules~~ foregoing (excluding the exhibits, but including all documents incorporated therein) as the Representative may reasonably request. The Company will also send to the Underwriters as soon as practicable after the date of this Agreement and ~~Regulations~~thereafter from time to time as many copies of the Prospectus as the Representative may reasonably request for the purposes required by the Securities Act. (b) ~~The Company will advise~~ During such period (not exceeding nine months) after the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes commencement of the offering of the ~~Securities. Any such final term sheet~~ Shares as the Underwriters may be required by law to deliver a Prospectus, if any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Representative shall occur, which in the Company's opinion 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 ~~an Issuer Free Writing~~ delivered to a purchaser, or if it is necessary to amend the Prospectus to comply with the Securities Act, the Company will forthwith at its expense prepare and ~~a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ furnish to the ~~use~~ Underwriters and dealers named by ~~any Underwriter~~ the Representative a reasonable number of copies of a ~~free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities~~ supplement or ~~their offering~~ supplements or ~~(y) information that describes the final terms of the Securities~~ an amendment or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating amendments to the ~~Securities~~ Prospectus which will supplement or amend the Prospectus so that as ~~in the opinion of counsel for the Underwriters is (~~supplemented or ~~but for the exemption in Rule 172 would be) required to be delivered under~~ amended it will comply with the Securities Act ~~in connection with sales by~~ and will not contain any ~~Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or 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 the Prospectus is delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the commencement of the offering of the Shares, the Company, upon the request of the Representative, will furnish to the Representative, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or ~~if for any other reason it shall be necessary during~~ supplements or amendments to the ~~same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply~~ Prospectus, complying with ~~the provisions~~ Section 10(a) of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (fc) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as reasonably practicable, but in any event not later than 16 months after the end of the fiscal quarter in which the filing of the Prospectus pursuant to Rule 424 occurs, an earning statement ~~covering a period of at least 12 months beginning after the date of this Agreement and satisfying~~ (in form complying with the provisions of Section 11(a) of the Securities ~~Act and Rule 158~~ Act, which need not be certified by independent public accountants) covering a period of twelve months beginning not later than the first day of the ~~Rules and Regulations~~Company's fiscal quarter next following the filing of the Prospectus pursuant to Rule 424. (gd) The Company will ~~furnish~~ use its best efforts promptly to do and perform all things to be done and performed by it hereunder prior to the ~~Representatives copies~~ Closing Date and to satisfy all conditions precedent to the delivery by it of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsShares. (he) The Company will ~~arrange for~~ advise the ~~qualification~~ Representative promptly of the ~~Securities~~ filing of the Prospectus pursuant to Rule 424 and of any amendment or supplement to the Prospectus or Registration Statement or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be entered, use its best efforts to obtain the prompt removal thereof. (f) The Company will use its best efforts to qualify the Shares, as may be required, for offer and sale under the Blue Sky or legal investment laws of such jurisdictions as the ~~Representatives reasonably designate~~ Representative may designate, and will ~~continue~~ file and make in each year such ~~qualifications in effect so long~~ statements or reports as are or may be reasonably required ~~for~~ by the ~~distribution~~laws of such jurisdictions; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify ~~to do business~~ as a foreign corporation or dealer in ~~any jurisdiction~~ securities, or to file ~~or consent or otherwise subject itself~~ any general consents to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost laws of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makejurisdiction.

Appears in 1 contract

Sources: Underwriting Agreement (Cp&l Energy Inc)

Covenants of the Company. ~~In further consideration of~~ The Company agrees with the ~~agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows~~Manager: (a) ~~The Company~~ To notify the Manager promptly of the time on or after the date of this Agreement when the Registration Statement or any amendment to the Registration Statement has been filed or ~~will~~ become effective or when the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any supplement to any of the foregoing has been filed; to prepare and file with the Commission, promptly upon the Manager’s request, any amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus that, in the Manager’s reasonable opinion, may be necessary or advisable in connection with the offering of the Shares by the Manager; and to cause the Basic Prospectus, the Prospectus Supplement and the Prospectus and each ~~Statutory~~ amendment or supplement to the Basic Prospectus, the Prospectus ~~(including~~ Supplement or the ~~Prospectus)~~ Prospectus to be filed with the Commission as required pursuant to ~~and in accordance with~~ the applicable paragraph of Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it~~ Act (without reliance on Rule 424(b)(8)) or, in the case of any Incorporated Document, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed; to cause each Permitted Free Writing Prospectus to be filed with the Commission as required by Rule 433 of the Act (to the extent such filing is ~~first used~~ required by such rule) and to retain copies of each Permitted Free Writing Prospectus that is not required to be filed with the ~~execution and delivery of this Agreement. The Company has complied and will comply~~ Commission in accordance with Rule 433 of the ~~Rules and Regulations~~Act. (b) ~~The Company will~~ To promptly advise the ~~Representatives~~ Manager, confirming such advice in writing, of any suspension of the Manager’s obligations under Rule 15c2-8 under the Exchange Act or any request by the Commission for amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus (in each case including, without limitation, any Incorporated Document) or for additional information with respect thereto, or of notice of examination, institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to promptly advise the Manager of any proposal to amend or supplement the Registration Statement, the Basic Prospectus, the Prospectus or ~~the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on~~ any ~~such proposed amendment or supplement; provided, however, that the Company shall not file~~ Permitted Free Writing Prospectus (other than any ~~such proposed~~ amendment or supplement to ~~which~~ be effected by the ~~Representatives reasonably object; and the Company will also advise the Representatives promptly~~ Company’s filing of a report, document or proxy or information statement pursuant to Sections 13, 14 or 15(d) of the Exchange Act, which shall be subject to the provisions of clause (2) of Section 4(d) below), and to provide the Manager and its counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing of and not to file or use any such amendment or supplement (other than any prospectus supplement relating to the offering of other securities (including, without limitation, the Common Stock)) to which the Manager shall have reasonably objected in writing. (c) To make available to the Manager, as soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Manager, as many copies of the ~~institution by~~ Prospectus and each Permitted Free Writing Prospectus (or of the ~~Commission of~~ Prospectus or any ~~stop order proceedings in respect~~ Permitted Free Writing Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Manager may reasonably request for the purposes contemplated by the Act; in case the Manager is required to deliver (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be. (1) Subject to clause (2) of this Section 4(d), to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and (2) to provide the Manager, for its review, with a copy of any ~~part thereof~~ reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act a reasonable amount of time prior to any proposed filing, and to promptly notify the Manager of such filing. (e) To pay the fees applicable to the Registration Statement in connection with the offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule 456(b) and Rule 457(r) under the Act. (f) If the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (a) promptly notify the Manager, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Manager, (c) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (d) promptly notify the Manager of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (g) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Manager, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, file a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Manager. If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Manager, and will use its best efforts to ~~prevent~~ cause such registration statement to be declared effective within 180 days after the ~~issuance~~ Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of ~~any~~ the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall refer to such ~~stop order and to obtain~~ new automatic shelf registration statement or such new shelf registration statement, as ~~soon as possible its lifting~~the case may be, ~~if issued~~from the date of effectiveness thereof. (ch) ~~The Company represents and agrees that, unless it obtains~~ To promptly notify the ~~prior consent~~ Manager of the ~~Representatives~~happening of any event that could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, ~~and each Underwriter represents and agrees that, unless it obtains~~ in the ~~prior consent~~ light of the ~~Company~~ circumstances under which they are made, not misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the ~~Representatives~~Company’s expense, ~~it has not made and will not make any offer relating~~ to the ~~Securities that would constitute an Issuer Free Writing Prospectus,~~ Manager promptly such amendments or ~~that would otherwise constitute a “free writing prospectus,”~~ supplements to such Prospectus as ~~defined in Rule 405~~ may be necessary to reflect any such change; and to promptly notify the Manager of the ~~Rules and Regulations, required to be filed with~~ happening of any event that could require the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each making of any change in any Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information so that ~~describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file~~ such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus ~~for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x)~~ would not conflict with information ~~describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included~~ contained in the ~~final term sheet of~~ Registration Statement, the ~~Company contemplated in~~ Prospectus or the ~~first sentence of this subsection~~ Incorporated Documents or ~~(ii) other information~~ so that ~~is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any~~ such ~~free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer~~ Permitted Free Writing Prospectus ~~for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172~~ would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would not include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading and, subject to Section 4(b) and Section 4(d), to prepare and furnish, at the Company’s expense, to the Manager promptly such amendments or ~~if for any other reason it shall~~ supplements to such Permitted Free Writing Prospectus as may be necessary ~~during the same period~~ to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, eliminate any such ~~amendment~~ conflict or ~~supplement shall constitute a waiver of~~ reflect any ~~of the conditions set forth in Section 5 hereof~~such change. (fi) ~~As soon~~ To furnish such information as ~~practicable, but not later than 16 months, after~~ may be required and otherwise to cooperate in qualifying the ~~date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement~~ Shares for offering and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the securities or blue sky laws of such states or other jurisdictions as the ~~Representatives reasonably~~ Manager may designate and ~~will continue~~ to maintain such qualifications in effect so long as required for the ~~distribution~~distribution of the Shares; provided, however, that ~~in connection therewith~~ the Company shall not be required to qualify as a foreign corporation or to ~~do business~~ consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Manager of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or ~~to file~~ the initiation or ~~consent or otherwise subject itself to service~~ threatening of ~~process or taxation in~~ any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Dateproceeding for such purpose. (j) ~~During~~ To make generally available to its security holders, and to deliver to the Manager, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning ~~from the date hereof and continuing to and including the date 30 days~~ after the effective date of the ~~Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except~~ Registration Statement (as ~~provided hereunder of, any securities~~ defined in Rule 158(c) of the ~~Company that are substantially similar to~~ Act) as soon as is reasonably practicable after the ~~Securities, without~~ termination of such twelve-month period but not later than eighteen months after the ~~prior written consent~~ effective date of the ~~Representatives~~Registration Statement (as such date is defined in Rule 158(c) under the Act). (k) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company ~~will~~ shall pay ~~or cause to be paid~~ all expenses incident to the performance of its obligations under this Agreement, ~~including:~~ whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, including without limitation such costs, expenses, fees and taxes in connection with (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the ~~Indenture, the~~ Registration Statement, ~~any preliminary prospectus~~the Basic Prospectus, the Prospectus, ~~any Issuer~~ each Prospectus Supplement, each Permitted Free Writing Prospectus and any amendments ~~and~~ or supplements ~~to any of the foregoing, including all printing costs associated therewith~~thereto, and the ~~mailing~~ printing and ~~delivering~~ furnishing of copies of each thereof to the ~~Underwriters~~ Manager (including costs of mailing and ~~dealers, in the quantities hereinabove specified~~shipment), (ii) ~~all costs and expenses related to~~ the ~~transfer~~ registration, issue, sale and delivery of the ~~Securities to the Underwriters,~~ Shares including any stock or transfer taxes and stamp or ~~other taxes~~ similar duties payable ~~thereon~~upon the sale, issuance or delivery of the Shares, (iii) the ~~cost~~ producing, word processing and/or printing of this Agreement, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing ~~certificates representing~~ and furnishing of copies of each thereof to the ~~Securities~~Manager (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state or foreign law (including the reasonable legal fees and filing fees and other disbursements of U.S. or other foreign counsel for the Manager) and the printing and furnishing of copies of any ~~fees charged by securities rating services for rating the Securities~~blue sky surveys, (v) the listing of the Shares on the NYSE and any other securities exchange and any registration thereof under the Exchange Act, (vi) any filing with, and any review of the public offering of the Shares by, FINRA, including the reasonable legal fees and ~~expenses of the Trustee and any agent of the Trustee and the fees and~~ other reasonable disbursements of counsel for the ~~Trustee in connection with the Indenture~~ Manager relating to FINRA matters and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) ~~any~~ the reasonable fees and disbursements of the Company’s and Manager’s counsel and of the Company’s accountants. Except as set forth on Annex I hereto, the Manager will pay all of its other out-of-pocket costs and expenses incurred in connection with entering into this Agreement and the ~~listing~~ transactions contemplated by this Agreement, including, without limitation, travel and similar expenses, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated. (l) To apply the net proceeds from the sale of the ~~Securities on~~ Shares in the ~~New York~~ manner set forth under the caption “Use of proceeds” in the Prospectus Supplement. (m) Not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under the Act of, any shares of Common Stock ~~Exchange and (viii) all~~ or any other ~~costs and expenses incident to the performance of the obligations~~ securities of the Company ~~hereunder~~ that are substantially similar to the Common Stock (“Similar Securities”) or any securities convertible into or exchangeable or exercisable for ~~which provision is not otherwise made~~ Common Stock or Similar Securities (including without limitation, any options, warrants or other rights to purchase Common Stock or Similar Securities), in ~~this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,”~~ each case without giving the Manager at least three Trading Days’ prior written notice specifying the nature of the proposed sale and the ~~last paragraph~~ date of ~~Section 8 below~~such proposed sale. Notwithstanding the foregoing, the ~~Underwriters will pay all~~ Company may (i) register the offer and sale of ~~their costs~~ the Shares through or to the Manager or any Alternative Manager pursuant to this Agreement or any Terms Agreement, Alternative Equity Distribution Agreement or Alternative Terms Agreement, as applicable; (ii) file registration statements relating to Common Stock that may be issued pursuant to the Company’s (a) dividend reinvestment and ~~expenses~~stock purchase plan, ~~including fees~~ (b) director and ~~disbursements~~ executive compensation plans and (c) other employee benefit plans (in the case of ~~their counsel~~(a), ~~transfer taxes payable on resale~~ (b) and (c) above, as such plans are described in the Company’s reports filed with the Commission under the Exchange Act); and (iii) issue shares of the Common Stock, issue options to purchase shares of the Common Stock or make grants of other equity awards, each pursuant to any of the ~~Securities~~ plans referred to in clause (ii) above. In the event that notice of a proposed sale is provided by ~~them~~ the Company pursuant to this Section 4(m), the Manager may suspend activity under this Agreement for such period of time as may be requested by the Company or as may be deemed appropriate by the Manager. (n) Not, at any time at or after the execution of this Agreement, to offer or sell any Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Prospectus or a Permitted Free Writing Prospectus. (o) The Company will not, and will cause its Subsidiaries not to, take, directly or indirectly, any ~~advertising expenses connected with~~ action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in (i) the stabilization or manipulation of the price of any ~~offers they may make~~security of the Company to facilitate the sale or resale of the Shares or (ii) a violation of Regulation M. The Company shall notify the Manager of any violation of Regulation M by the Company or any Subsidiary or any of their respective officers or directors promptly after the Company has received notice or obtained knowledge of any such violation. (p) To use its best efforts to cause the Common Stock to be listed on the NYSE and to maintain such listing. (q) To advise the Manager immediately after it shall have received notice or obtain knowledge thereof, of any information or fact that would materially alter or affect any opinion, certifica

Appears in 1 contract

Sources: Equity Distribution Agreement (Omega Healthcare Investors Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Shares shall have been filed or become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representatives may reasonably request for distribution of the ~~Securities and otherwise in a form consented to by~~ Shares. (e) The Company will deliver to, or upon the order of, the Representatives, ~~and will file such final term sheet within the period required by Rule 433(d)(5)(ii)~~ from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Preliminary Prospectus or any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representatives may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will furnish promptly to the ~~use by any Underwriter of~~ Representatives, upon request, a ~~free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ signed copy of the ~~Securities~~ Registration Statement, as initially filed with the Commission, and all amendments or ~~their offering or~~ supplements thereto (yincluding all exhibits filed therewith and all documents incorporated by reference therein) ~~information that describes the final terms~~ and such number of conformed copies of the ~~Securities or their offering~~ foregoing as the Representatives may reasonably request. (f) The Company will comply with the Act and ~~that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ Registration Statement (as defined in Rule 158(c) under the ~~laws~~ Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of ~~such jurisdictions as~~ Section 11(a) of the ~~Representatives reasonably designate~~ Act and the Rule 158 under the Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) ~~The Company will use its commercially reasonable efforts to effect the listing~~ No offering, sale, short sale or other disposition of any shares of Common Stock of the ~~Securities on the New York~~ Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock ~~Exchange within 30 days~~ or derivative of ~~the Closing Date.~~ Common Stock (jor agreement for such) ~~During the~~ will be made for a period ~~beginning from the date hereof and continuing to and including the date~~ of 30 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. and except that the Company may (i) offer and sell up to 1,000,000 shares of Common Stock pursuant to a Controlled Equity Offering Sales Agreement, dated June 29, 2007, by and between the Company and Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and (ii) issue up to 24,811 shares of Common Stock to ▇▇▇▇▇ ▇▇▇▇▇▇▇ and up to 29,150 shares of Common Stock to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ upon the exercise of stock options, provided that the Company shall cause such individuals not to offer, sell, pledge, contract to ~~sell, pledge~~sell (including any short sale), grant any option to ~~purchase, make any short sale~~ purchase or otherwise ~~dispose~~dispose of such shares during such 30-day period. Notwithstanding the foregoing, ~~except as provided hereunder of, any securities~~ if (1) during the last 17 days of the 30-day restricted period, the Company ~~that are substantially similar~~ issues an earnings release or material news or a material event relating to the ~~Securities, without~~ Company occurs; or (2) prior to the ~~prior written consent~~ expiration of the ~~Representatives~~30-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 30-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless Deutsche Bank Securities Inc. waives, in writing, such extension. (j) The Company will use its best efforts to list the Shares, subject to notice of issuance, on the New York Stock Exchange. (k) ~~Whether or not~~ The Company shall use its best efforts to cause the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated~~officers, directors and stockholders of the Company ~~will pay~~ listed on Schedule IV hereto to furnish to you, on or ~~cause to be paid all expenses incident~~ prior to the ~~performance~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit B (the “Lockup Agreement”). (l) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ General Disclosure Package and the Prospectus. (m) The Company shall not invest, ~~any Issuer Free Writing Prospectus and amendments and supplements to~~ or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing~~Subsidiaries to register as an investment company under the 1940 Act. (n) The Company will maintain a transfer agent and, ~~including all printing costs associated therewith, and~~ if necessary under the ~~mailing and delivering~~ jurisdiction of ~~copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ incorporation of the ~~Securities~~ Company, a registrar for the Common Stock. (o) 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 ~~Underwriters, including any transfer~~ stabilization or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses manipulation of the ~~Trustee and~~ price of any ~~agent~~ securities of the ~~Trustee and~~ Company. (p) The Company will use its best efforts to meet the ~~fees and disbursements of counsel~~ requirements for ~~the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees~~ qualification as a REIT under Sections 856 through 860 of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCode.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Anworth Mortgage Asset Corp)

Covenants of the Company. ~~In further consideration of the agreements~~ The Company covenants and agrees with each of the Underwriters ~~herein contained, the Company covenants with each Underwriter~~ as follows: (a) The Company (i) has filed or the Statutory Prospectus and will file ~~each Statutory Prospectus (including~~ the Prospectus) , in a form approved by the Representative, with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it such Statutory Prospectus or Prospectus is first used ~~and~~ or the execution and delivery of this Agreement~~. The Company has complied~~ , (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and ~~will comply~~ furnished with ~~Rule 433 of~~ a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approves its use in writing prior to as first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Annex A hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record keeping, and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (dc) The Company will ~~prepare a final term sheet relating~~ advise the Representatives as promptly as practicable (A) of receipt of any comments from the Commission, (B) when any supplement to the ~~Securities~~Prospectus, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, (C) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, (D) of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eE) ~~If, at any time when a prospectus relating to~~ of the ~~Securities as in the opinion~~ occurrence of ~~counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (F) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any order referred to in clause (D) or (F) of this paragraph and to obtain as soon as practicable the lifting thereof, if issued. (d) The Company will cooperate with the Representatives in arranging for ~~any other reason it shall~~ the qualification of the Shares for offering and sale under the securities or “Blue Sky” laws of which jurisdictions as the Representatives may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Shares; provided, however, that in connection therewith, the Company shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will prepare and file with the Commission an appropriate supplement to the Prospectus so that the Prospectus as so 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. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement or Preliminary Prospectus then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company as promptly as practicable will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ apply the ~~qualification~~ net proceeds of its sale of the ~~Securities for sale~~ Shares as set forth under “Use of Proceeds” in the ~~laws of such jurisdictions as~~ General Disclosure Package and the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectProspectus. (i) ~~The Company will use its commercially reasonable efforts~~ No offering, pledge, sale, contract to ~~effect the listing~~ sell, short sale or other disposition of any shares of Convertible Preferred Stock, Common Stock of the ~~Securities on the New York~~ Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock ~~Exchange within 30 days~~ or derivative of ~~the Closing Date.~~ Common Stock (jor agreement for such) ~~During the~~ will be made for a period ~~beginning from the date hereof and continuing to and including the date 30~~ of 45 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives.~~ Representative. The restrictions contained in the foregoing sentence shall not apply to (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (iA) the ~~fees~~issuance of shares of Common Stock upon exercise, ~~disbursements and expenses~~ conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other derivative securities or stock-based awards granted pursuant to the Company’s ~~counsel~~ equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (B) the issuance of shares of, or options to purchase shares of, Common Stock, or the grant of other equity-based awards (including any securities convertible into shares of Common Stock), pursuant to the Company’s ~~accountants~~ equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (C) the filing of any registration statement on Form S-8 with respect to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (D) the issuance of shares of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for shares of Common Stock or other securities) in connection with the ~~registration and delivery~~ acquisition by the Company or any of the ~~Securities under~~ Subsidiaries of the ~~Securities Act and all~~ securities, business, properties or other ~~fees~~ assets of another person or ~~expenses~~ entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with any such acquisition, or (E) the ~~preparation and filing~~ issuance of ~~the Indenture~~shares of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for shares of Common Stock or other securities) in connection with joint ventures, ~~the Registration Statement~~commercial relationships or other strategic transactions; provided, ~~any preliminary prospectus~~however, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealersthat, in the ~~quantities hereinabove specified~~case of clauses (D) and (E), the aggregate number of shares issued in all such acquisitions (~~ii) all costs and expenses related~~ other than the acquisitions disclosed in the Prospectus under the heading “Summary—Recent Developments” to the ~~transfer~~ extent consummated on the terms described thereunder) and ~~delivery~~ transactions does not exceed 10% of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses outstanding Common Stock as of the ~~Trustee and any agent~~ date of the ~~Trustee and~~ Prospectus. For the ~~fees and disbursements~~ avoidance of ~~counsel for~~ doubt, the ~~Trustee~~ foregoing shall in ~~connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees~~ no way restrict a subsidiary of the Company ~~for any “road show” undertaken in connection with the marketing of the offering of the Securities~~from registering, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not selling or otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale disposing of any of its common stock, including shares of common stock of such subsidiary owned by the ~~Securities by them~~ Company. (j) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the Effective Date, an earnings statement (which need not be audited) satisfying the requirements of Section 11(a) of the Act and ~~any advertising expenses connected with any offers they may make~~Rule 158 under the Act and will advise you in writing when such statement has been so made available.

Appears in 1 contract

Sources: Underwriting Agreement (Sunedison, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or will file each Statutory Prospectus (including~~ will, if the ~~Prospectus) with~~ Registration Statement is not effective at the ~~Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier~~ time of ~~the date it is first used and~~ the execution and delivery of this Agreement, prepare and timely file with the Commission an amendment to the Registration Statement that includes the form of final prospectus, which amendment and form of final prospectus shall contain all required information with respect to the Securities and the offering thereof, and, if required by Rule 424(b), a prospectus under Rule 424(b) (in each case only if the Representatives or their counsel have not reasonably objected thereto after having been furnished a copy thereof prior to the proposed filing thereof), and in each case will notify the Representatives promptly of such filing and 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 promptly. If required, the Company will file the Prospectus and any amendments or supplements thereto with the Commission in the manner and within the time period required by Rule 424(b) (but only if the Representatives or their counsel have not reasonably objected thereto promptly after having been furnished a copy thereof a reasonable time prior to the proposed filing thereof). During any time when a prospectus relating to the Securities is required to be delivered under the Act, the Company (i) will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuation of sales of or dealings in the Securities 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 second sentence of Section 2(a) hereof or any amendment or supplement to such Prospectus or any amendment to the Registration Statement of which the Representatives and their counsel shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed filing and as to which filing the Representatives and their counsel shall not have given their respective consent, which consent will not be unreasonably withheld or delayed. The Company ~~has complied~~ will prepare and will ~~comply~~ file with ~~Rule 433 of~~ the Commission, in accordance with the Act and the Rules and Regulations, promptly upon request by the Representatives or counsel for the Representatives, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or reasonably advisable in connection with the distribution of the Securities by the Underwriters, and the Company will use its best efforts to cause any such amendment to the Registration Statement to be declared effective by the Commission promptly. The Company will advise the Representatives, promptly after it receives notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus or any amendments or supplements thereto have been filed. (b) The Company will advise the ~~Representatives~~ Representatives, promptly after receiving notice or obtaining knowledge thereof, of ~~any proposal to amend or supplement~~ (i) the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any amendment thereto or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto, (ii) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (iii) the institution, threat or contemplation of any proceeding for any such purpose or (iv) any request made by the Commission for amending the Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order ~~and~~ and, if any such stop order is issued, to obtain the withdrawal thereof as ~~soon~~ promptly as ~~possible its lifting, if issued~~possible. (c) The Company ~~represents and agrees that, unless it obtains~~ will cooperate with the ~~prior consent~~ Representatives in arranging for the qualification of the ~~Representatives,~~ Securities for offering and ~~each Underwriter represents~~ sale under the securities or "Blue Sky" laws of such jurisdictions in the United States and ~~agrees that, unless it obtains~~ Canada as the ~~prior consent~~ Representatives may designate and will continue such qualifications in effect for as long as may be necessary to complete the distribution of the Securities; provided that in connection therewith the Company ~~and the Representatives, it has~~ shall not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, be required to ~~be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to~~ qualify as a ~~“Permitted Free Writing Prospectus.” The Company represents that~~ foreign corporation or to execute a general consent to service of process in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingis not otherwise subject. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file During such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” time as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities ~~as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities Act in connection with sales by any Underwriter or dealer~~Act, if after due inquiry, the Company should become aware of any event ~~occurs~~ that occurs, and as a result of which ~~the General Disclosure Package or~~ the Prospectus as then amended or supplemented would include an any untrue statement of a material ~~fact~~ fact, or omit to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if the Company should be of the opinion that for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with the ~~Securities Act~~Act or the Rules and Regulations, the Company will promptly notify the Representatives and their counsel thereof and the Company will prepare ~~and~~ and, subject to Section 6(a) hereof, will file with the Commission, at its ~~own~~ sole expense, an amendment ~~or supplement which will correct such statement or omission~~ to the Registration Statement or an amendment ~~which will effect such compliance. Neither~~ or supplement to the Prospectus (in form and substance reasonably satisfactory to the Representatives ~~consent to~~and their counsel and in compliance with the Act and the Rules and Regulations) so that the Prospectus as so supplemented or amended will not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, ~~nor~~ in the ~~Underwriters’ delivery of~~light of the circumstances under which they were made, not misleading, or so that the Prospectus will comply with law, and will deliver to the Representatives, without charge, such number of copies thereof as they may reasonably request. (e) The Company will, without charge, provide (i) to the Representatives and to their counsel a signed copy of the registration statement originally filed and each amendment thereto (in each case including exhibits thereto) and the Registration Statement and (ii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus and the Prospectus relating to the Securities and any ~~such~~ amendment or supplement ~~shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~thereto as each Underwriter may reasonably request. (f) As The Company, as soon as reasonably practicable, ~~but not later than 16 months, after the date of this Agreement, the Company~~ will make generally available to ~~its securityholders~~ holders of the Securities and to the Underwriters consolidated earning statements of the Company (which need not be certified by an ~~earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying~~ independent public accountant) that satisfy the provisions of Section 11(a) of the ~~Securities~~ Act and Rule 158 ~~of the Rules and Regulations~~thereunder. (g) ~~The~~ For and during the period ending five years after the effective date of the Registration Statement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters copies of all reports and other communications (financial or otherwise) furnished by the ~~Registration Statement, including all exhibits,~~ Company to its securityholders generally and copies of any ~~related preliminary prospectus,~~ reports or financial statements furnished to or filed by the Company with the Commission or any ~~related preliminary prospectus supplement,~~ national securities exchange on which any class of securities of the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company ~~will pay the expenses of printing and distributing to the Underwriters all such documents~~may be listed. (h) ~~The~~ Prior to the Closing Date and any Option Closing Date, as the case may be, the Company will ~~arrange for~~ furnish to the ~~qualification~~ Representatives, as soon as they have been prepared and are available, a copy of any unaudited interim consolidated financial statements of the ~~Securities~~ Company and ▇▇▇▇▇▇▇ and any pro forma information for ~~sale under~~ any period subsequent to the ~~laws of such jurisdictions as~~ period covered by its most recent financial statements included in the ~~Representatives reasonably designate~~ Registration Statement and ~~will continue such qualifications in effect so long as required for~~ the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectProspectus. (i) The Company will ~~use its commercially reasonable efforts to effect the listing of the Securities on~~ file with the New York Stock Exchange ~~within 30 days~~ all documents and notices required by the New York Stock Exchange of companies that have issued securities that are traded in the ~~Closing Date~~over-the-counter market and quotations for which are reported by the New York Stock Exchange. (j) The Company will not at any time, directly or indirectly, take any action designed, or that might reasonably be expected, to cause or result in, or that will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Securities in violation of the Exchange Act or any applicable rules of the New York Stock Exchange. (k) If, prior to the completion of the distribution of the Securities, the Company commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Commissioner with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus relating to the Securities, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department. (l) During ~~the~~ a period ~~beginning~~ of 90 days from the date hereof ~~and continuing to and including~~ "Lock-up Period"), the ~~date 30 days after~~ Company will not, without the ~~date of the Prospectus~~Representatives' prior written consent, ~~not to~~ offer, sell, contract to sell, ~~pledge, grant any option to purchase, make any short sale~~ or otherwise ~~dispose, except as provided hereunder~~ dispose of, directly or indirectly, any shares of Common Stock or any interests therein, or any securities convertible into, or exchangeable for, shares of Common Stock, or rights to acquire the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: same except for (i) ~~the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants~~ Securities issued pursuant to this Agreement; (ii) Common Stock or other equity securities issued in connection with any merger or other acquisition by the ~~registration and delivery of the Securities under the Securities Act and all~~ Company provided that such Common Stock or other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof equity securities are specifically made subject to the ~~Underwriters~~ restrictions of this paragraph for the Lock-up Period and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) Common Stock issuable on exercise of options or warrants referred to in the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeProspectus.

Appears in 1 contract

Sources: Underwriting Agreement (Fibermark Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, and (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and Regulations. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule [ ] hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will promptly advise the Representatives ~~promptly~~ (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (iii) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (iv) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representatives may reasonably request for distribution of the ~~Securities and otherwise in a form consented~~ Shares. (e) The Company will deliver to, from time to by time or upon the ~~Representatives~~order of, ~~and~~ the Representatives as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will ~~file such final term sheet within~~ deliver to, from time to time or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Representatives as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Representatives may reasonably request. The Company ~~also consents~~ will deliver to the ~~use by any Underwriter~~ Representatives during the period when delivery of a ~~free writing prospectus that contains only~~ Prospectus (~~i)(x~~or, in lieu thereof, the notice referred to under Rule 173(a) ~~information describing~~ under the ~~preliminary terms~~ Act) (the “Prospectus Delivery Period”) is required under the Act or upon the order of the ~~Securities or their offering or (y) information that describes the final terms~~ Representatives, as many copies of the ~~Securities~~ Prospectus in final form, or ~~their offering and that is included in~~ as thereafter amended or supplemented, as the ~~final term sheet~~ Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) The Company ~~contemplated in~~ will comply with the ~~first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason~~ law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall be occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which~~ to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will ~~correct such statement or omission or an amendment which will effect such compliance. Neither~~ not, in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentslaw. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so (which may be satisfied by filing with the ~~qualification~~ Commission’s ▇▇▇▇▇ system), but in any event not later than 15 months after the effective date of the ~~Securities for sale~~ 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 Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise you in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) ~~The Company will use its commercially reasonable efforts~~ Prior to ~~effect the listing of the Securities on the New York Stock Exchange within 30 days of~~ the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (j) During the period beginning from the date hereof and continuing to and including the date 30 180 days after the date of the ~~Prospectus~~Prospectus (the “Lock-Up Period”), not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided ~~hereunder of~~hereunder, of any securities of the Company that are substantially similar to the ~~Securities~~Shares, including but not limited to any options or warrants to purchase shares of Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than (i) pursuant to employee stock option plans existing on the date of this Agreement, (ii) upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, (iii) in connection with a forward or reverse stock split, or (iv) in connection with the acquisition (whether through merger, share purchase, share exchange or otherwise) of a company, division, business or assets or strategic transactions, provided that every recipient of any such securities (and every party that will be entitled to receive such securities upon closing of the applicable transaction or otherwise has rights with respect to such securities) agrees in writing to be subject to this paragraph for the remainder of the Lock-Up Period), without ~~the~~ your prior written ~~consent~~ consent; provided, however, that if (1) during the last 17 days of the ~~Representatives~~initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless DBSI waives, in writing, such extension; the Company will provide DBSI and each stockholder subject to the Lock-Up Period pursuant to the Lock-Up Agreements described in Section 4(l) with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period. (k) ~~Whether or not~~ The Company will use its best efforts to list the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated,~~ Shares on the Nasdaq Global Market and maintain such listing of the Shares on the Nasdaq Global Market. (l) The Company has caused each officer and director of the Company ~~will pay~~ and the holders of at least [ ]% of the outstanding shares of Common Stock (treating, for all purposes of this subsection (l), all options, warrants and other securities exercisable or ~~cause~~ exchangeable for Common Stock as having been exercised or exchanged (as the case may be) and all securities convertible into Common Stock as having been converted) to ~~be paid all expenses incident~~ furnish to you, on or prior to the ~~performance~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lock-Up Agreement”). (m) The Company shall apply the net proceeds of its ~~obligations~~ sale of the Shares as set forth in the Registration Statement, General Disclosure Package and 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 ~~this Agreement~~the Act. (n) The Company shall not invest, ~~including:~~ or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (io) The Company will maintain a transfer agent and, if necessary under the ~~fees, disbursements and expenses~~ jurisdiction of incorporation of the Company~~’s counsel and~~ , a registrar for the Common Stock. (p) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company~~’s accountants~~ . (q) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the ~~registration and delivery~~ Directed Share Program. (r) In the event that pursuant to the terms of the ~~Securities under~~ Lockup Agreement a securityholder during the ~~Securities Act~~ initial Lock-Up Period and ~~all other fees or expenses in connection with~~ up to and including the ~~preparation and filing~~ 34th day following the expiration of the ~~Indenture~~initial Lock-Up Period gives notice to the Company of any action or transaction it intends to undertake that is subject to the terms of the Lock-Up Agreement, the ~~Registration Statement, any preliminary prospectus,~~ Company agrees that it will provide within 2 business days a written confirmation as to whether the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements~~ Lock-Up Period (as such may have been extended pursuant to ~~any~~ the terms of the ~~foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii~~Lock-Up Agreement) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makehas expired.

Appears in 1 contract

Sources: Underwriting Agreement (Intellon Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with you and each Underwriter participating in the offering of Underwritten Securities as follows: (ai) ~~The~~ If the Company does not elect to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has ~~filed or~~ agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will ~~file each Statutory~~ promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, immediately following the execution of the applicable Terms Agreement, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus) , in such number as you shall reasonably request, and promptly file or transmit for filing with the Commission ~~pursuant to and~~ the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) ~~not later than the second business day following the earlier~~ of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ 1933 Act Regulations. (bii) The Company will ~~advise~~ notify you immediately, and if written notice is requested by you, confirm such notice in writing as soon as reasonably practicable, of (i) the ~~Representatives promptly~~ effectiveness of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~General Disclosure Package and will afford~~ 1934 Act, (iii) the ~~Representatives a reasonable opportunity~~ receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to ~~comment on~~ the Registration Statement or any ~~such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus or for additional information, and (v) the ~~Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof~~ proceedings for that purpose; and the Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (ciii) ~~The Company represents and agrees that, unless it obtains~~ At any time when the ~~prior consent~~ Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the ~~Representatives~~Underwritten Securities, ~~and each Underwriter represents and agrees that, unless it obtains the prior consent of~~ the Company ~~and the Representatives, it has not made and~~ will ~~not make~~ give you notice of its intention to file or prepare any ~~offer relating~~ amendment to the ~~Securities that would constitute an Issuer Free Writing~~ Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or ~~that would~~ otherwise ~~constitute a “free writing prospectus,” as defined~~ (including any revised prospectus which the Company proposes for use by the Underwriters in ~~Rule 405~~ connection with an offering of Underwritten Securities which differs from the ~~Rules and Regulations~~Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised prospectus is required to be filed ~~with the Commission. Any such free writing prospectus consented~~ pursuant to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule ~~433~~ 424(b) of the ~~Rules and~~ 1933 Act Regulations, ~~and has complied~~ or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will ~~comply~~ furnish you with copies of any such amendment or supplement or other documents proposed to be filed or used a reasonable amount of time prior to such proposed filing or use, as the ~~requirements of Rules 164~~ case may be, and ~~433 of~~ will not file any such amendment or supplement or other documents in a form to which you or counsel for the ~~Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~Underwriters shall reasonably object. (div) The Company will ~~prepare a final term sheet relating~~ deliver to ~~the Securities, containing only information that describes the final terms~~ each Underwriter as many signed and conformed copies of the ~~Securities~~ Registration Statement as originally filed and ~~otherwise in a form consented~~ of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by ~~the Representatives, and will file~~ reference therein) as such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreementreasonably requests. (ev) IfThe Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (vi) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a ~~prospectus relating to the Securities as~~ result of which it is necessary, in the opinion of counsel for the Underwriters ~~is (~~or ~~but~~ counsel for the ~~exemption in Rule 172 would be) required~~ Company, to ~~be delivered under the Securities Act in connection with sales by any Underwriter~~ amend or ~~dealer, any event occurs as a result of which the General Disclosure Package or~~ supplement the Prospectus ~~as then amended or supplemented would~~ 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,~~ therein not misleading in the light of the circumstances ~~under which they were made, not misleading~~existing at the time it is delivered to a purchaser, or if ~~for any other reason~~ it shall be ~~necessary during~~ necessary, in the ~~same period~~ opinion of either such counsel, at any such time to amend or supplement the ~~General Disclosure Package~~ Registration Statement or ~~the Prospectus or to file under the Exchange Act any document incorporated by reference in~~ the Prospectus in order to comply with the ~~provisions~~ requirements of the ~~Securities Act, the Exchange~~ 1933 Act or the ~~Trust Indenture Act~~1933 Act Regulations, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, then the Company will promptly prepare ~~and~~ and, subject to Section 3(a)(iii), file with the ~~Commission, at its own expense, an~~ Commission such amendment or ~~supplement which will~~ supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or ~~an amendment which~~ to make the Registration Statement and Prospectus comply with such requirements, and the Company will ~~effect such compliance. Neither~~ furnish to the ~~Representatives consent to, nor the Underwriters’ delivery of, any~~ Underwriters a reasonable number of copies of such amendment or ~~supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~supplement. (fvii) ~~As soon~~ The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities, the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as ~~practicable~~you may designate. In each jurisdiction in which the Underwritten Securities, ~~but~~ the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Warrant Securities, if any; PROVIDED, HOWEVER, that the Company shall not ~~later than 16 months~~be obligated to (A) qualify as a foreign entity in any jurisdiction where it is not so qualified, ~~after the date~~ (B) file any general consent to service of ~~this Agreement~~process, or (C) take any action that would subject it to income taxation in any such jurisdiction. (viii) With respect to each sale of Underwritten Securities, the Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12 months beginning~~ security holders as soon as practicable, but not later than 90 days after the ~~date~~ close of ~~this Agreement and satisfying~~ the period covered thereby, an earnings statement (in form complying with the provisions of ~~Section 11(a) of the Securities Act and~~ Rule 158 of the ~~Rules~~ 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 such Rule 158) of the Registration Statement. (ix) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time period prescribed by the 1934 Act and the 1934 Act Regulations. (gx) During the period of 14 days from the date of the Prospectus Supplement, the Company will not, directly or indirectly, without your prior written consent, (a) 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 a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the 1934 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, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company or of any of its subsidiaries, other than the Company's sale of Underwritten Securities pursuant to the applicable Terms Agreement and the Company's issuance of Common Stock (i) upon the exercise of presently outstanding options, (ii) in connection with acquisitions by the Company or a subsidiary, and (iii) the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof or (b) file a registration statement under the 1933 Act registering shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest in shares of Common Stock, except for a registration statement on Form S-8 with respect to shares of Common Stock issuable under the Newcastle Investment Corp. Nonqualified Stock Option and Incentive Award Plan, as amended from time to time. (xi) If the Preferred Shares or Depositary Shares are convertible into shares of Common Stock or if Common Stock Warrants are issued, the Company will reserve and keep available at all times, free of preemptive or other similar rights, a sufficient number of shares of Common Stock or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Common Stock Warrants. (xii) If the Underwritten Securities are Common Stock, Preferred Shares or Depositary Shares, the Company will use its best efforts to list such shares of Common Stock, Preferred Shares or Depositary Shares, as the case may be, on the New York Stock Exchange or such other national securities exchange on which the Company's shares of Common Stock are then listed. If the Preferred Shares or Depositary Shares are convertible into shares of Common Stock, the Company will use its best efforts to list the shares of Common Stock issuable upon conversion of the Preferred Shares or Depositary Shares on the New York Stock Exchange or such other national securities exchange on which the Company's shares of Common Stock are then listed. (xiii) The Company will ~~furnish to~~ apply the ~~Representatives copies~~ net proceeds from the sale of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Underwritten Securities as set forth under "Use of Proceeds" in the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (ixiv) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ meet the ~~listing~~ requirements to qualify as a "real estate investment trust" under the Code for each of its taxable years for so long as the ~~Securities on the New York Stock Exchange within 30 days~~ Board of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities Directors of the Company ~~that are substantially similar to~~ deems it in the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses best interests of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements 's shareholders to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeremain so qualified.

Appears in 1 contract

Sources: Underwriting Agreement (Newcastle Investment Corp)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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. (ci) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus~~.” The Company represents~~ ”); provided that ~~it has treated and agrees that it will~~ the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) [Intentionally omitted.] (d) The Company will ~~prepare a final term sheet relating~~ promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the ~~Securities, containing only information that describes~~ later of (a) completion of the ~~final terms~~ distribution of the Securities ~~and otherwise in a form consented to by the Representatives, and will file such final term sheet~~ within the ~~period required by Rule 433(d)(5)(ii)~~ meaning of the ~~Rules~~ Act and ~~Regulations following the date such final terms have been established for all classes~~ (b) completion of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus 180-day restricted period referred to in ~~clause (i~~Section 4(m) ~~or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement~~hereof. (e) IfThe Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, at (B) of receipt of any ~~time~~ comments from the Commission, (C) when ~~a prospectus relating~~ any supplement to the ~~Securities as in~~ Prospectus or any Issuer Free Writing Prospectus or any supplement to the ~~opinion~~ Prospectus has been filed, (D) of ~~counsel~~ any request of the Commission for amendment of the ~~Underwriters is~~ Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~but for~~ any order preventing or suspending the ~~exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by~~ use of any ~~Underwriter or dealer~~Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event ~~occurs~~ within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (f) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (g) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. If requested, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (h) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (i) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company as promptly as practicable will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~General Disclosure Package. (fj) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gk) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits~~the General Disclosure Package and the Prospectus. (l) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, ~~any related preliminary prospectus~~in the light of the circumstances existing at that subsequent time, ~~any related preliminary prospectus supplement~~not misleading, the ~~Prospectus, any Issuer Free Writing Prospectus~~ Company will promptly notify the Representatives and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment will promptly amend or supplement, ~~during the period mentioned in Section 4(e) above and in~~ at its own expense, such ~~quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing~~ Written Testing-the-Waters Communication to ~~the Underwriters all~~ eliminate or correct such ~~documents~~untrue statement or omission. (hm) ~~The Company will arrange for the qualification~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the ~~Securities~~ Company or other securities convertible into or exchangeable or exercisable for ~~sale under the laws~~ shares of ~~such jurisdictions as the Representatives reasonably designate and~~ Common Stock or derivative of Common Stock (or agreement for such) will ~~continue such qualifications in effect so long as required~~ be made for ~~the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service~~ a period of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 180 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives~~Representatives except, in each case, for (A) issuances of shares of Common Stock in the Reorganization, which in the aggregate will be 10,412,449 shares of Common Stock, (B) grants of stock options, stock appreciation rights, restricted stock, restricted stock units or other stock-based awards pursuant to the Company’s 2013 Equity Incentive Plan, (C) the filing of any registration statement on Form S-8 with respect to the Company’s 2013 Equity Incentive Plan, or (D) issuances of shares of Common Stock pursuant to the exercise, conversion or vesting of stock options, stock appreciation rights, restricted stock, restricted stock units, deferred stock units or other stock-based awards granted under the Company’s 2013 Equity Incentive Plan. Notwithstanding the foregoing, if during the 180-day restricted period the Company is no longer an Emerging Growth Company, and (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waive, in writing, such extension. The Company shall promptly notify the Representatives of any earnings release, news or event that may give rise to an extension of the initial 180-day restricted period. Notwithstanding the foregoing, within one to ten business days following the Closing Date, (x) LGI Investment Fund II, LP shall distribute an aggregate of 2,327,629 shares of Common Stock to its limited partners, each of whom shall execute and deliver a Lockup Agreement (as defined below), and (y) LGI Investment Fund III, LP shall distribute an aggregate of 2,161,580 shares of Common Stock to its limited partners, each of whom shall execute and deliver a Lockup Agreement. (kn) ~~Whether~~ The Company will use its best efforts to list the Shares, subject to notice of issuance, for quotation on the NASDAQ Global Select Market, effect and maintain the listing of the Shares on the NASDAQ Global Select Market. (o) The Company has caused each officer, director and stockholder of the Company, including (A) each stockholder that will be issued shares of Common Stock in the Reorganization, (B) each limited partner of LGI Investment Fund II, LP that will receive shares of Common Stock upon the distribution of such shares by LGI Investment Fund II, LP as contemplated by Section 4(m) hereof and (C) each limited partner of LGI Investment Fund III, LP that will receive shares of Common Stock upon the distribution of such shares by LGI Investment Fund III, LP as contemplated by Section 4(m) hereof, to execute and deliver to you, on or ~~not~~ prior to the ~~transactions contemplated~~ date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”); provided, however, that the Lockup Agreements executed and delivered by (A) GTIS LGI I LP, GTAM MALLARD LLC, GTIS LGI LP, GTIS US RESIDENTIAL STRATEGIES FUND LP and LGI IV BLOCKER LLC to you shall include the variations to the form of Lockup Agreement attached hereto as Exhibit A set forth in Section 5.4 of each Purchase Agreement dated as of August 28, 2013, as amended to date, by and among the Company and the respective GTIS entity or entities, as the case may be, and (B) ▇▇▇▇▇▇ ▇▇▇▇▇, EDSS Holdings, LP and RE Finance Partners, Ltd. to you shall allow ▇▇. ▇▇▇▇▇ or such entity to pledge shares of Common Stock owned by ▇▇. ▇▇▇▇▇ or attributable to ▇▇. ▇▇▇▇▇’▇ partnership interests in such entity to a bank or other financial institution after a period of 90 days from the date of this Agreement. If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement ~~are consummated~~ for an officer or ~~this Agreement is terminated~~director of the Company and provides the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Company ~~will pay~~ agrees to announce the impending release or ~~cause to be paid all expenses incident to~~ waiver by a press release substantially in the ~~performance~~ form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver. (p) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Shares as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus,~~ the ~~Prospectus, any Issuer Free Writing~~ General Disclosure Package and the Prospectus and ~~amendments~~ shall file such reports with the Commission with respect to the sale of the Shares and ~~supplements to~~ the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (q) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the ~~foregoing, including all printing costs associated therewith, and~~ LGI Entities to register as an investment company under the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.1940 Act

Appears in 1 contract

Sources: Underwriting Agreement (LGI Homes, Inc.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act a Prospectus in a form approved by the ~~earlier~~ Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Shares shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the receipt of any ~~proposal to amend~~ comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time ~~when~~ after the Representatives have informed the Company that Shares remain unsold, the Company receives from the Commission a ~~prospectus~~ notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the ~~Securities~~ Shares, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the ~~opinion~~ Registration Statement that was the subject of ~~counsel~~ the notice under Rule 401(g)(2) under the Act or for which the ~~Underwriters~~ Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be. (e) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement the Representatives have informed the Company that Shares remain unsold, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (f) The Company agrees to pay the required filing fees to the Commission relating to the Shares within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (g) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under (or ~~but~~ obtain exemptions from the application of the qualification requirements of) the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. The Company shall advise the Representatives 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 of 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 shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment. (h) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule ~~172 would be~~173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will maintain in the Company’s files manually signed copies of the Registration Statement as initially filed and all amendments thereto including all consents and exhibits filed therewith in accordance with the Rules and Regulations of the Commission. (i) The Company will comply with the Act, the Exchange Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any~~ an Underwriter or a dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representatives, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time prior to the consummation of the Offering to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (j) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representatives, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof~~circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (fk) As The Company will make generally available to its security holders, as soon as ~~practicable~~it is practicable to do so, but in any event not later than ~~16 months~~15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (l) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (m) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 45 days after the date of this Agreement, directly or indirectly, by the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement otherwise than hereunder or ~~as soon as possible,~~ with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives~~. (k) Whether or~~ , which consent shall not ~~the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~be unreasonably withheld; provided, however, that the Company ~~will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including:~~ may issue (i) shares of its Common Stock upon the ~~fees, disbursements and expenses~~ exercise of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specifiedoptions, (ii) ~~all costs~~ shares of its Common Stock pursuant to stock grants and ~~expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon,~~ (iii) ~~the cost of printing certificates representing the Securities~~options to purchase its Common Stock, ~~(iv) any fees charged by securities rating services for rating the Securities~~to directors, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company, issued pursuant to employee or director benefit plans, stock option plans or the employee compensation plans. (n) The Company ~~for any “road show” undertaken in connection with~~ will use its best efforts to list, subject to notice of issuance, the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities Shares on the ~~New York Stock Exchange and~~ Nasdaq Global Select Market. (~~viii~~o) ~~all~~ The Company will use its best efforts to cause each executive officer, director, other ~~costs and expenses incident to the performance of the obligations~~ person or entity of the Company ~~hereunder for which provision is not otherwise made~~ listed on Exhibit B furnish to you, on or prior to the Closing Date, a letter or letters, substantially in ~~this Section. It is understood, however, that except~~ the form of Exhibit C hereto (the “Lockup Agreement”). (p) The Company shall apply the net proceeds of its sale of the Shares as ~~provided~~ set forth in ~~this Section, Section 6 entitled “Indemnity and Contribution,”~~ the General Disclosure Package and the ~~last paragraph~~ Prospectus and shall file such reports with the Commission with respect to the sale of ~~Section 8 below~~the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (q) The Company shall not invest, or otherwise use the ~~Underwriters will pay all~~ proceeds received by the Company from its sale of ~~their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ the Shares in such a manner as would require the Company or any of the ~~Securities by them and~~ Subsidiaries to register as an investment company under the 1940 Act. (r) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (s) The Company will not take, directly or indirectly, any ~~advertising expenses connected with~~ action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any ~~offers they may make~~securities of the Company.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Wynn Resorts LTD)

Covenants of the Company. ~~In further consideration of the agreements~~ The Company covenants and agrees with each of the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will ~~file each Statutory Prospectus~~ (~~including~~ i) if the ~~Prospectus~~Company and the Representative have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement to become effective, (ii) if the Company and the Representative have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and ~~in accordance with~~ Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 497 of the Rules and Regulations, and (iii) if the Company and the Representative have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. During any time when a Prospectus relating to the Securities is required to be delivered under the Act, the Company (i) 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 Securities 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, Term Sheet or the amendment referred to in the second sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus, Term Sheet or any amendment to the Registration Statement or any Rule 462(b) Registration Statement of which the Representative 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 Representative shall not have given their consent. The Company will prepare and file with the Commission, in accordance with the Rules and Regulations, promptly upon request by the Representative or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Securities by the several Underwriters, 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 Representative, 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 any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Representative of each such filing or effectiveness. (b) The Company will advise the ~~Representatives~~ Representative, promptly after receiving notice or obtaining knowledge thereof, of ~~any proposal to amend or supplement~~ (i) the Registration Statement, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement or any amendment thereto or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Securities 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 Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order ~~and~~ and, if any such stop order is issued, to obtain the withdrawal thereof as ~~soon~~ promptly as ~~possible its lifting, if issued~~possible. (c) The Company ~~represents and agrees that, unless it obtains~~ will arrange for the ~~prior consent~~ qualification of the ~~Representatives,~~ Securities for offering and ~~each Underwriter represents~~ sale under the securities or blue sky laws of such jurisdictions as the Representative may designate and ~~agrees that, unless it obtains~~ will continue such qualifications in effect for as long as may be necessary to complete the ~~prior consent~~ distribution of the Securities, provided, however, that in connection therewith the Company ~~and the Representatives, it has~~ shall not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, be required to ~~be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to~~ qualify as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined foreign corporation or to execute a general consent to service of process in ~~Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to~~ any ~~Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping~~jurisdiction. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time prior to the later of (i) the final date when a prospectus relating to the Securities ~~as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required to be delivered under the ~~Securities~~ Act ~~in connection with sales by any Underwriter~~ or ~~dealer~~(ii) the last Closing Time, any event occurs as a result of which the ~~General Disclosure Package or the Prospectus~~ Prospectus, as then amended or ~~supplemented~~ supplemented, would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend ~~the General Disclosure Package~~ or supplement the Prospectus to comply with the ~~Securities Act~~Act or the Rules and Regulations, the Company will promptly notify the Representative thereof and, subject to Section 5(a) hereof, will prepare and file with the Commission, at ~~its own~~ the Company’s expense, an amendment to the Registration Statement or an amendment or supplement ~~which will correct~~ to the Prospectus that corrects such statement or omission or ~~an amendment which will effect~~ effects such compliance~~. Neither~~ . (e) The Company will, without charge, provide (i) to the ~~Representatives consent to~~Representative and to counsel for the Underwriters a conformed copy of the Registration Statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto) or any Rule 462(b) Registration Statement, ~~nor~~ certified by the ~~Underwriters’ delivery of~~Secretary or an Assistant Secretary of the Company to be true and complete copies thereof as filed with the Commission by electronic transmission, (ii) to each other Underwriter, a conformed copy of such Registration Statement or any ~~such~~ Rule 462(b) Registration Statement and each amendment thereto (in each case without exhibits thereto) and (iii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement ~~shall constitute a waiver~~ thereto as the Representative may reasonably request; without limiting the application of ~~any~~ clause (iii) of this sentence, the Company, not later than (A) 6:00 P.M., New York City time, on the date of determination of the ~~conditions set forth in Section 5 hereof~~public offering price, if such determination occurred at or prior to 10:00 A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 10:00 A.M., New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representative may reasonably request for purposes of confirming orders that are expected to settle on the Closing Time. (f) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning~~ security holders and to the Representative not later than forty-five days after the end of the period covered thereby, a consolidated earnings statement ~~covering~~ of the Company and its subsidiaries that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning ~~after~~ not later than the first day of the Company’s fiscal quarter next following the effective date of this ~~Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations~~Agreement. (g) The Company will ~~furnish to~~ apply the ~~Representatives copies~~ net proceeds from the sale of the ~~Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ Securities as set forth under “Use of Proceeds” in the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will ~~arrange for~~ not, directly or indirectly, without the ~~qualification~~ prior written consent of the ~~Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided~~Representative, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing on behalf of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the ProspectusUnderwriters, ~~not to~~ offer, sell, hypothecate, offer to sell, contract to sell, pledge, grant any option to ~~purchase~~purchase or otherwise sell or dispose (or announce any offer, ~~make~~ sale, offer of sale, contract of sale, pledge, grant of any ~~short~~ option to purchase or other sale or ~~otherwise dispose~~disposition) of any Securities for a period of 180 days after the date hereof, except ~~as provided hereunder of~~pursuant to this Agreement and except for issuances pursuant to the exercise of employee stock options outstanding on the date hereof, ~~any~~ pursuant to the Company’s dividend reinvestment plan or pursuant to the terms of convertible securities of the Company outstanding on the date hereof. (i) The Company will not, directly or indirectly, (i) take any action designed to cause or to result in, or that ~~are substantially similar~~ has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (B) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except as provided in this Agreement). (j) The Company will obtain the agreements described in Section 6(h) hereof prior to the ~~Securities, without the prior written consent of the Representatives~~first Closing Time. (k) ~~Whether~~ If at any time during the 25-day period after the Registration Statement becomes effective or ~~not~~ the ~~transactions contemplated~~ period prior to the last Closing Time, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in ~~this Agreement are consummated~~ your opinion, the market price of the Securities has been or ~~this Agreement~~ is ~~terminated~~likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company ~~will pay or cause to be paid all expenses incident~~ will, after notice from you advising the Company to the ~~performance~~ effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event. (l) If the Company elects to rely on Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Act by the earlier of ~~its obligations under this Agreement, including:~~ (i) 10:00 P.M. Eastern time on the ~~fees~~date of this Agreement and (ii) the time confirmations are sent or given, ~~disbursements~~ as specified by Rule 462(b)(2). (m) The Company will use its best efforts to cause the Warrants to be duly included for quotation on OTC Bulletin Board (the “OTC Bulletin Board”) prior to the Initial Closing Time. The Company will ensure that the Common Stock and ~~expenses~~ Warrants remain included for quotation on the OTC Bulletin Board following the Initial Closing Time. (n) The Company will maintain a transfer agent and registrar for the Securities. (o) The Company will supply the Representative with copies of all written correspondence to and from, and all documents issued to and by, the ~~Company’s counsel and the Company’s accountants~~ Commission in connection with the registration ~~and delivery~~ of the Securities under the ~~Securities~~ Act and ~~all other fees or expenses~~ under the OTC Bulletin Board. (p) The Company will furnish to its securityholders annual reports containing financial statements audited by independent certified public accountants and with quarterly summary financial information in ~~connection with~~ reasonable detail which may be unaudited. During the ~~preparation and filing~~ period of five years from the date hereof, the Company will deliver to the Representative and, upon request, to each of the ~~Indenture~~other Underwriters, ~~the Registration Statement~~as soon as they are available, ~~any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any~~ copies of each annual report of the ~~foregoing, including all printing costs associated therewith,~~ Company and each other report furnished by the ~~mailing~~ Company to its securityholders and ~~delivering of copies thereof~~ will deliver to the ~~Underwriters and dealers~~Representative, in (i) as soon as they are available, copies of any other reports (financial or other) which the ~~quantities hereinabove specified~~Company shall publish or otherwise make available to its securityholders as such, (ii) ~~all costs~~ as soon as they are available, copies of any reports and ~~expenses related~~ financial statements furnished to or filed with the Commission or any national securities exchange or the OTC Bulletin Board, and (iii) from time to time such other information concerning the Company as the Representative may reasonably request. So long as the Company has active subsidiaries, such financial statements will be on a consolidated basis to the ~~transfer and delivery~~ extent the accounts of the ~~Securities~~ Company and its subsidiaries are consolidated in reports furnished to its securityholders generally. Separate financial statements shall be furnished for subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations. (q) Prior to the Closing Times, the Company will furnish to the Representative, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus. (r) For a period of 12 months following the last Closing Time, the Company will use its best efforts to provide to the Representative copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least 24 hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable. (s) During the period of five years hereafter, the Company will furnish to the Representative, and upon request of the Representative, to each of the Underwriters, ~~including any transfer~~ (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders’ equity and cash flows for the year then ended and the opinion thereon of the Company’s independent certified public accountants, (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-KSB, Quarterly Report on Form 10-QSB, Report on Form 8-K or other ~~taxes payable thereon~~report filed by the Company with the Commission, or the OTC Bulletin Board or any national securities exchange, and (iii) as soon as available, copies of any report or communication of the ~~cost~~ Company mailed generally to its securityholders. (t) Within sixty (60) days of ~~printing certificates representing~~ the ~~Securities~~last Closing Time, the Company shall deliver to counsel for the Underwriters two leather-bound volumes containing the documents delivered on each Closing Time by the parties hereto. (ivu) ~~any fees charged~~ When requested by ~~securities rating services for rating~~ the ~~Securities~~Representative, but not more than weekly, the Company shall provide a list of the Company’s shareholders as of the date the Representative requests such lists, together with the Depository Trust Company (DTC) transfer sheets and the Non-Objecting Beneficial Ownership (NOBO) lists provided by ADP Proxy Services. (v) The Company hereby appoints the ~~fees and expenses~~ Underwriters, commencing one year after the Offering has been declared effective by the Commission for a term of ~~the Trustee and any agent of the Trustee and the fees and disbursements of counsel~~ two years, to act as exclusive solicitation agents for the ~~Trustee~~ Company in connection with exercise of the ~~Indenture~~ Warrants, and the ~~Securities~~Underwriters hereby accept that appointment. The Underwriters shall, ~~(vi) travel~~ consistent with their obligations under applicable laws and ~~lodging expenses of officers~~ the rules and ~~employees~~ regulations of the NASD, use their best efforts to maximize the number of Warrants that are exercised, those efforts to include without limitation engaging in appropriate communications with the record owners and beneficial owners of the Warrants, as well as with the owners’ brokers, agents, or other representatives, no sooner than one year after the Offering has been declared effective by the Commission. (w) The Company ~~for~~ shall pay the Underwriters a fee consisting of a cash payment equal to five percent (5%) of the total proceeds received from exercise of any Warrants (the “~~road show” undertaken~~ Solicitation Fee”). The Company is only obligated to pay the Solicitation Fee to the Underwriters with respect to exercise of any Warrant if all of the following conditions are met: (1) exercise of that Warrant is in accordance with the terms of the Warrant; (2) the actions of the Underwriters in soliciting exercise of that Warrant have been consistent with applicable federal and state securities laws, the guidelines of the NASD, and applicable Commission rules and regulations, including Regulation M; and (3) the Underwriters have disclosed in writing to the holder of that Warrant the compensation that they are to receive in connection with soliciting exercise of that Warrant. (x) Within fifteen (15) days after the ~~marketing~~ end of each month, the Company shall deliver a notice to the Underwriters stating the number of Warrant certificates that have been properly completed for exercise by holders of the ~~offering of~~ Warrants and shall pay the ~~Securities, and one-half of the cost of any aircraft chartered in connection~~ Solicitation Fee with ~~the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) all other costs and expenses incident~~ respect to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.th

Appears in 1 contract

Sources: Underwriting Agreement (Stratus Services Group Inc)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants with each Underwriter as follows: (a) Immediately following the execution of this Agreement, the Company will prepare a Prospectus setting forth the number of Shares covered thereby and their terms not otherwise specified in the preliminary prospectus, the names of the Underwriters, the price at which the Shares are to be purchased by the Underwriters from the Company, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Shares; and the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will furnish to the Underwriters as many copies (including by electronic means, if so requested in lieu of paper copies) of the Prospectus as they shall reasonably request, including, if requested by the Underwriters, in addition to or in lieu thereof, electronic copies of the Prospectus. The Company ~~has filed or will file each Statutory Prospectus~~ shall pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1) (~~including~~ i) of the ~~Prospectus) with the Commission pursuant to~~ 1933 Act Regulations and otherwise in accordance with ~~Rule 424(b~~Rules 456(b) ~~not later than the second business day following the earlier~~ and 457(r) of the ~~date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and~~ 1933 Act Regulations. (b) ~~The~~ During the period beginning on the Applicable Time and ending on the later of the Closing Time or such date, as in the reasonable opinion of counsel for the Underwriters, the Prospectus is no longer required under the 1933 Act or the 1934 Act to be delivered in connection with sales by the Underwriters or a dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations (the “Prospectus Delivery Period”), the Company will ~~advise~~ comply with the requirements of Rule 430B and will notify the Representatives ~~promptly~~ immediately, and confirm the notice in writing, (i) of the transmittal to the Commission for filing of any ~~proposal~~ amendment to ~~amend or supplement~~ the Registration Statement, (ii) of the transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~General Disclosure Package and will afford~~ 1934 Act, (iii) of the ~~Representatives a reasonable opportunity~~ receipt of any comments from the Commission with respect to ~~comment on~~ the Registration Statement or Prospectus or documents incorporated or deemed to be incorporated by reference therein, (iv) of any ~~such proposed~~ request by the Commission for any amendment to the Registration Statement or ~~supplement; provided, however, that the Company shall not file~~ any ~~such proposed~~ amendment or supplement to ~~which~~ the ~~Representatives reasonably object;~~ Prospectus with respect to the Shares or for additional information relating thereto, and ~~the Company will also advise the Representatives promptly~~ (v) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or the initiation of any ~~part thereof and~~ proceedings for that purpose. The Company will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any such stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (c) During the Prospectus Delivery Period, prior to amending or supplementing the Registration Statement (including any filing under Rule 462(b) of the 1933 Act Regulations), any preliminary prospectus or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the 1934 Act), the Company will furnish to the Representatives for review a copy of each such proposed 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 counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. If reasonably requested by the Representatives, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel for the Underwriters shall reasonably object. (d) If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any Shares remain unsold by the Underwriters, the Company will, prior to that date, (i) promptly notify the Representatives and (ii) promptly file, if it has not already done so and is eligible to do so, an automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If at the Renewal Deadline the Company is not eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, (i) promptly notify the Representatives, (ii) promptly file, if it has not already done so, a new registration statement or post-effective amendment on the proper form relating to such Shares, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective within 180 days after that date and (iv) promptly notify the Representatives of such effectiveness. References herein to the “Registration Statement” will include such automatic shelf registration statement or such new shelf registration statement or post-effective amendment, as the case may be, if and when filed. (e) Upon request, the Company will deliver to the Underwriters a conformed copy of the Original Registration Statement as originally filed and of each amendment thereto filed prior to the termination of the initial offering of the Shares (including exhibits filed therewith or incorporated by reference therein and the documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3). (f) The Company will furnish to the Underwriters, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with the offering, such number of copies (including by electronic means, if so requested by the Underwriters, in addition to or in lieu of, paper copies) of the Prospectus (as amended or supplemented) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act Regulations. (g) If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with the sale of the Shares after the date hereof, any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters, which shall be communicated by the Underwriters through the Representatives in writing to the Company, 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 delivered, the Company will promptly either (i) forthwith prepare and furnish to the Underwriters an amendment of or supplement to the Prospectus or (ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, in each case, in form and substance reasonably satisfactory to counsel for the Underwriters, which will amend or supplement the Prospectus so that it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered, not misleading. If at any time after the date hereof, an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is used, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement in a manner reasonably satisfactory to the Representatives, at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time following 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 any other registration statement relating to the Shares) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives 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. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 5 hereof. (h) The Company represents and agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter ~~represents and~~ agrees that, unless it obtains the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the ~~Securities~~ Shares that would constitute an ~~Issuer Free Writing Prospectus~~“issuer free writing prospectus”, as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule ~~405 of the Rules and Regulations~~405, required to be filed with the Commission; provided, however, if applicable, that prior to the preparation of any Final Term Sheet in accordance with Section 3(c) hereof, the Underwriters are authorized to use the information with respect to the final terms of the Shares in communications conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated ~~and~~ or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule ~~433 of the Rules and Regulations~~433, and has complied and will comply with the requirements of ~~Rules 164 and~~ Rule 433 ~~of the Rules and Regulations~~ applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission ~~filing~~ where required, legending and record keeping. (di) The Company will ~~prepare a final term sheet relating to the Securities~~endeavor in good faith, ~~containing only information that describes the final terms of the Securities and otherwise~~ in ~~a form consented to by~~ cooperation with the Representatives, to qualify the Shares for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Representatives may designate; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or trust or to file any general consent to service of process. In each jurisdiction in which the Shares have been so qualified the Company will file such ~~final term sheet within~~ statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as required for the distribution of the Shares. (j) The Company will make generally available to its security holders as soon as reasonably practicable, but not later than 90 days after the close of the period ~~required by Rule 433(d)(5)(ii)~~ covered thereby, an earning statement of the ~~Rules and Regulations~~ Company (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a period of at least twelve months beginning not later than the first day of the Company’s fiscal quarter next following the effective date ~~such final terms~~ of the Registration Statement. “Earning statement”, “make generally available” and “effective date” will have ~~been established~~ the meanings contained in Rule 158 of the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds” in all material respects. (l) The Company currently intends to continue to qualify as a “real estate investment trust” under the Code, and use its best efforts to continue to meet the requirements for ~~all classes~~ qualification as a “real estate investment trust” under the Code. (m) The Company will timely file any document which it is required to file pursuant to the 1934 Act prior to the termination of the offering of the ~~Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.~~ Shares. (n) The Company ~~also consents~~ will use its best efforts to effect the ~~use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ listing of the ~~Securities or their offering or~~ Shares on the NYSE. (yo) ~~information that describes~~ During a period of 60 days from the ~~final terms~~ date of the ~~Securities~~ Prospectus, the Company will not, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, (i) directly or ~~their offering and that is included in~~ indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares or file any registration statement under the ~~final term sheet~~ 1933 Act with respect to any of the ~~Company contemplated in the first sentence of this subsection~~ foregoing or (ii) enter into any swap or any other ~~information~~ agreement or any transaction that ~~is not “issuer information,” as defined~~ transfers, in ~~Rule 433~~ whole or in part, directly or indirectly, the economic consequence of ownership of the ~~Rules and Regulations~~Common Shares, ~~it being understood that~~ whether any such ~~free writing prospectus referred to~~ swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any Common Shares issued pursuant to the Company’s Incentive Share Award Plan or any dividend reinvestment plan, (C) Common Shares to be issued to the Manager in payment of its incentive fee, (D) the issuance of any Common Shares to owners of any assets, property or business which the Company may acquire in the future, whether by merger, acquisition of assets or capital stock or otherwise, as consideration for the acquisition of such assets, property or business; provided that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC receives a signed lock-up agreement in substantially the form of Exhibit A hereto for the balance of the 60-day restricted period from the recipients receiving Common Shares in connection with any such acquisitions, and (E) any registration statement on Form S-8 under the 1933 Act with respect to the foregoing clauses (B), (C) and (D). Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted period, the Company issues an ~~Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when~~ earnings release or material news or a ~~prospectus~~ material event relating to the ~~Securities as in~~ Company occurs or (2) prior to the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 expiration of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act60-day restricted period, the Company ~~promptly~~ announces that it will ~~notify~~ release earnings results or becomes aware that material news or a material event will occur during the ~~Representatives~~ 16-day period beginning on the last day of ~~such event~~the 60-day restricted period, ~~and if such event~~ the restrictions imposed in this Section 3(o) shall ~~occur or if, in~~ continue to apply until the ~~opinion~~ expiration of ~~counsel for~~ the ~~Underwriters, it is necessary at any time to amend~~ 18-day period beginning on the ~~General Disclosure Package~~ issuance of the earnings release or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any occurrence of the ~~conditions set forth in Section 5 hereof~~material news or material event. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the Securities, without the prior written consent of the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Underwriting Agreement (Hospitality Properties Trust)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants ~~with each Underwriter as follows~~and agrees that: (a) ~~The Company has filed or~~ it will ~~file each Statutory Prospectus~~ (~~including~~ i) cause the ~~Prospectus~~Launch to occur by February 28, 2020, (ii) ~~with~~ provide counsel to the ~~Commission pursuant~~ Exchanging Holder a reasonable period of time to review and ~~in accordance with Rule 424(b~~comment on drafts of all Definitive Documentation prior to the need for such Definitive Documentation to be completed, and (iii) ~~not later than~~ use commercially reasonable efforts to cause the ~~second business day following~~ conditions to the ~~earlier of the date it is first used~~ Exchange Offer and the ~~execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations.~~Consent Solicitations to be satisfied as promptly as practicable; (b) ~~The~~ the Company will ~~advise the Representatives promptly~~ use commercially reasonable efforts to call a special meeting of ~~any~~ stockholders (or consider such matters at an annual meeting of stockholders) to consider a proposal to amend ~~or supplement the Registration Statement~~its articles of amendment and restatement and any other similar organizational documents, the Prospectus or the General Disclosure Package and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as ~~possible its lifting~~practicable, ~~if issued~~and in any event no later than August 31, 2020, to increase the Company’s authorized share capital so that shares of Common Stock can be issued in the full amount as required under any conversion of the New Notes. (c) ~~The Company represents~~ that (i) the New Notes and ~~agrees that, unless it obtains~~ Common Stock will be issued pursuant to and in compliance with the ~~prior consent~~ Registration Statement (ii) the Exchange Offer will comply in all material respects with all applicable provisions of Rule 13e-4 of the ~~Representatives,~~ Exchange Act and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.Regulation 14E thereunder; (d) ~~The Company will prepare a final term sheet relating~~ on or prior to the ~~Securities~~Effective Date, ~~containing only information that describes the final terms~~ it shall pay (or cause to be paid) all then-outstanding reasonable and documented fees and expenses of ~~the Securities and otherwise in a form consented to by the Representatives~~▇▇▇▇, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the ~~use by~~ Exchanging Holder (including any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering including fees and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any expenses estimated to be incurred through such ~~free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.~~dates); and (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the General Disclosure Package or the Prospectus as then amended or 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 for any other reason it shall be necessary during the same period to amend or supplement the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend the General Disclosure Package or the Prospectus to comply with the Securities Act, the Company 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 which will effect such compliance. Neither the Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof. (f) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not ~~be required~~ consummate any material modification, waiver, change or amendment to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the ~~listing~~ terms of the ~~Securities on~~ Exchange Offer or the ~~New York Stock Exchange within 30 days~~ Consent Solicitation (including, for the avoidance of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder ofdoubt, any ~~securities of the Company that are substantially similar~~ modification, waiver, change or amendment to the ~~Securities,~~ Conditions to the Exchange Offer as described in the Registration Statement) without the prior written consent of the ~~Representatives~~Exchanging Holder. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

Appears in 1 contract

Sources: Support and Exchange Agreement (A. M. Castle & Co.)

Covenants of the Company. ~~In further consideration of the agreements of~~ The Company covenants and agrees with the Underwriters ~~herein contained, the Company covenants with each Underwriter as follows~~that: (a) The Company ~~has filed or~~ will (i) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) under the Act a Prospectus in a form approved by the Representative (such approval not ~~later than~~ to be unreasonably withheld or delayed) containing information previously omitted at the ~~second business day following the earlier~~ time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is ~~first used and the execution and delivery of this Agreement. The Company has complied and will comply~~ not in compliance with ~~Rule 433 of~~ the Rules and ~~Regulations~~Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in the Underwriters or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriters that such Underwriters otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (c) The Company will advise the ~~Representatives~~ Underwriters promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective, (ii) of receipt of any ~~proposal to amend or supplement~~ comments from the Commission, (iii) of any request of the Commission for amendment of the Registration ~~Statement, the Prospectus~~ Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly (iv) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any ~~part thereof and~~ Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a ~~final term sheet relating to~~ period as the ~~Securities, containing only information that describes the final terms~~ Representative may reasonably request for distribution of the ~~Securities and otherwise in a form consented~~ Shares. (e) The Company will deliver to, or upon the order of, the Underwriters, from time to by time, as many copies of any Preliminary Prospectus as the ~~Representatives~~Underwriters may reasonably request. The Company will deliver to, ~~and will file such final term sheet within~~ or upon the ~~period required by Rule 433(d)(5)(ii)~~ order of, the Underwriters, from time to time, as many copies of ~~the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement~~as the Underwriters may reasonably request. The Company ~~also consents~~ will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the ~~use by any Underwriter~~ Underwriters such number of ~~a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ copies of the ~~Securities or their offering or~~ Registration Statement (~~y) information that describes the final terms~~ including such number of copies of the ~~Securities or their offering~~ exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and ~~that is included in~~ of all amendments thereto, as the ~~final term sheet of~~ Underwriters may reasonably request. (f) The Company will comply with the ~~Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of~~ Act and the Rules and Regulations, ~~it being understood that any such free writing~~ and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to ~~in clause (i~~under Rule 173(a) ~~or (ii~~under the Act) ~~above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time when a prospectus relating to the Securities as in the opinion of counsel for the Underwriters~~ is ~~(or but for the exemption in Rule 172 would be)~~ required by law to be delivered ~~under the Securities Act in connection with sales~~ by ~~any Underwriter~~ an underwriter or dealer, any event ~~occurs~~ shall occur as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement 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~~existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or ~~if for~~ supplement the Prospectus to comply with any ~~other reason it~~ law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary ~~during the same period~~ to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters an appropriate amendment or supplement to the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the ~~Commission~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, ~~at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ in the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any~~ light of the ~~conditions set forth in Section 5 hereof. (f) As soon as practicable~~circumstances, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earning statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (g) The Company will furnish to the Representatives copies of be misleading or conflict with the Registration ~~Statement~~Statement then on file, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ or so that the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, General Disclosure Package will comply with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documentsapplicable law. (h) The Company will ~~arrange for~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the ~~qualification~~ effective date of the ~~Securities for sale~~ 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 Rule 158 under the ~~laws of such jurisdictions as the Representatives reasonably designate~~ Act and will ~~continue~~ advise the Underwriters in writing when such ~~qualifications in effect~~ statement has been so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subjectmade available. (i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) The Company will use its ~~commercially reasonable~~ best efforts to ~~effect~~ list the Shares on the NASDAQ Capital Market and maintain the listing of the ~~Securities~~ Shares on the ~~New York Stock Exchange within 30 days~~ NASDAQ Capital Market. (k) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus. (l) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (o) Prior to the Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business, operations or prospects, or the offering of the Shares, without the prior written consent of the Representative, unless in the reasonable judgment of the Company and its counsel, and after notification to the Underwriters, such press release or communication is required by law or by NASDAQ Capital Market rules, in which case the Company shall use its reasonable best efforts to allow the Underwriters reasonable time to comment on such release or other communication in advance of such issuance. (jp) ~~During~~ The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with the ~~period beginning from~~ execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (other than as set forth in this Agreement). (q) The Company has caused each officer and director of the Company listed on Schedule V to furnish to you, on or prior to the date ~~hereof and continuing to and including~~ of this Agreement, a letter or letters, substantially in the ~~date 30~~ form attached hereto as Exhibit A (the “Lockup Agreement”). (r) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, ~~not to offer~~directly or indirectly, ~~sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of~~ by the Company ~~that are substantially similar to the Securities, without~~ otherwise than hereunder or with the prior written consent of the ~~Representatives.~~ Representative. Notwithstanding the foregoing, if (ki) ~~Whether or not~~ during the ~~transactions contemplated in this Agreement are consummated or this Agreement is terminated~~last 17 days of the 90-day restricted period, the Company ~~will pay~~ issues an earnings release or ~~cause to be paid all expenses incident~~ material news or a material event relating to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees Company occurs; or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) ~~all costs and expenses related~~ prior to the ~~transfer and delivery~~ expiration of the ~~Securities~~ 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 90-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the ~~Underwriters~~Company, ~~including any transfer or other taxes payable thereon~~as the case may be, ~~(iii)~~ unless the ~~cost of printing certificates representing the Securities~~Representative waives, ~~(iv) any fees charged by securities rating services for rating the Securities~~in writing, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makesuch extension.

Appears in 1 contract

Sources: Equity Underwriting Agreement (Chelsea Therapeutics International, Ltd.)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company has filed or will file each Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used and the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of the Rules and Regulations. (bi) The Company will ~~advise~~ (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~promptly~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Act, (B) not file any ~~proposal~~ amendment to ~~amend~~ the Registration Statement or distribute an amendment or supplement ~~the Registration Statement, the Prospectus or~~ to the General Disclosure Package ~~and will afford~~ or the Prospectus of which the Representatives ~~a reasonable opportunity to comment on any such proposed amendment or supplement; provided, however, that the Company~~ shall not ~~file any such proposed amendment~~ previously have been advised and furnished with a copy or ~~supplement~~ to which the Representatives shall have reasonably ~~object;~~ objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company ~~will also advise~~ with the ~~Representatives promptly~~ Commission subsequent to the date of the ~~filing of any such amendment or supplement~~ Prospectus and prior to the termination of the ~~institution~~ offering of the Shares by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof 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 issuedUnderwriters. (cii) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will (i) not make any offer relating to the ~~Securities~~ Shares that would constitute an Issuer Free Writing ~~Prospectus,~~ Prospectus or that would otherwise constitute a “free writing prospectus,” (as defined in Rule 405 of under the ~~Rules and Regulations,~~ Act) required to be filed ~~with the Commission. Any such free writing prospectus consented to~~ by the Company ~~and~~ with the Commission under Rule 433 under the Act unless the Representatives ~~is hereinafter referred~~ approve its use in writing prior to as first use (each, a “Permitted Free Writing Prospectus.”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule [IV] hereto and any “roadshow” ~~The Company represents~~ that it is a written communication and within the meaning of Rule 422(d)(8)(i) that has ~~treated and agrees that it will~~ been reviewed by the Representatives, (ii) treat each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations~~Issuer Free Writing Prospectus, ~~and has complied and will~~ (iii) comply with the requirements of Rules 164 and 433 of under the ~~Rules and Regulations~~ Act applicable to any ~~Permitted~~ Issuer Free Writing Prospectus, including the requirements relating to timely ~~Commission~~ filing ~~where required~~with the Commission, legending and record ~~keeping~~keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (diii) The Company will ~~prepare a final term sheet relating~~ promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the ~~Securities, containing only information that describes~~ later of (a) completion of the ~~final terms~~ distribution of the Securities ~~and otherwise in a form consented to by the Representatives, and will file such final term sheet~~ within the meaning of the Act and (b) completion of the 180-day restricted period ~~required by Rule 433(d)(5)(ii~~referred to in Section 4(xi) hereof. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the ~~Rules and Regulations following~~ Commission, (C) when any supplement to the ~~date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an~~ Prospectus, any Issuer Free Writing Prospectus ~~and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents~~ or any amendment to the ~~use by~~ Prospectus has been filed, (D) of any ~~Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms~~ request of the ~~Securities or their offering or (y) information that describes the final terms~~ Commission for amendment of the ~~Securities~~ Registration Statement or ~~their offering and that is included in~~ for supplement to the ~~final term sheet~~ General Disclosure Package or the Prospectus or for any additional information, (E) of the ~~Company contemplated in~~ issuance by the ~~first sentence~~ Commission of ~~this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433~~ any stop order suspending the effectiveness of the ~~Rules and Regulations~~Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, ~~it being understood that~~ any ~~such free writing prospectus referred to in clause (i) or (ii) above shall not be an~~ Issuer Free Writing Prospectus, the Prospectus or of the institution of any proceedings for ~~purposes~~ that purpose or pursuant to Section 8A of ~~this Agreement.~~ the Act, (eF) ~~If, at any time when a prospectus relating to~~ of the ~~Securities as in the opinion~~ occurrence of ~~counsel for the Underwriters is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer,~~ any event ~~occurs~~ or development within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or ~~the~~ any Issuer Free Writing Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the applicable securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified, (y) file any general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in respect of doing business in any jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other ~~reason it shall~~ documents, as are or may be ~~necessary~~ required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the ~~same~~ period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus~~ in order to ~~comply with~~ make the ~~provisions of the Securities Act, the Exchange Act or the Trust Indenture Act, the Company promptly will notify the Representatives of such event, and if such event shall occur or if~~statements therein, in the ~~opinion~~ light of ~~counsel for~~ the ~~Underwriters~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package ~~or the Prospectus~~ to comply with ~~the Securities Act~~any law, the Company promptly will ~~promptly prepare and~~ prepare, file with the ~~Commission, at its own expense,~~ Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement ~~which will correct such statement or omission or an amendment which will effect such compliance. Neither~~ to the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~General Disclosure Package. (fix) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders~~ security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earning~~ earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (gx) ~~The~~ Prior to the Closing Date, the Company will furnish to the ~~Representatives copies~~ Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, ~~including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement,~~ the General Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (hxi) ~~The Company will arrange for the qualification~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the ~~Securities~~ Company or other securities convertible into or exchangeable or exercisable for ~~sale under the laws~~ shares of ~~such jurisdictions as the Representatives reasonably designate and~~ Common Stock or derivative of Common Stock (or agreement for such) will ~~continue such qualifications in effect so long as required~~ be made for ~~the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service~~ a period of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (j) During the period beginning from the date hereof and continuing to and including the date 30 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representatives. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock, units of limited partnership (“OP Units”) in American Farmland Company, L.P. (the “Operating Partnership”) or other equity based award issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus (including the filing of a registration statement on Form S-8 relating to such existing employee benefit plans of the Company), (D) any shares of Common Stock, OP Units or other equity based awards issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (E) the issuance of shares of Common Stock or OP Units by the Company or the Operating Partnership in the Internalization (as defined in the Prospectus), (F) OP Units, in the aggregate not to ~~offer~~exceed 5% of the number of OP Units outstanding, ~~sell~~issued in connection with the acquisition of property or assets, ~~contract~~ provided that the recipients of the OP Units agree in writing (upon substantially the terms set forth in the Lock-Up Agreement attached hereto as Exhibit B) not to sell, ~~pledge~~offer, ~~grant any option to purchase, make any short sale~~ dispose or otherwise ~~dispose, except as provided hereunder of,~~ transfer any ~~securities~~ such OP Units during the remainder of the ~~Company that are substantially similar to the Securities,~~ 180-day period without the prior written consent of the Representatives. (kxii) ~~Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the~~ The Company will ~~pay or cause~~ use its best efforts to ~~be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements~~ effect and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture, the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by securities rating services for rating the Securities, (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with maintain the listing of the ~~Securities~~ Shares on the New York Stock ~~Exchange~~ Exchange. (xiii) The Company has caused the officers and ~~(viii) all other costs and expenses incident to the performance of the obligations~~ directors of the Company ~~hereunder for which provision is~~ listed on Schedule IV to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit B (the “Lock-up Agreement”). (xiv) During the 180-day restricted period, as may be extended, referred to in Section 4(xi), the Company shall not ~~otherwise made~~ waive the provisions of any lock-up agreement entered into between the Company and any shareholder of the Company pursuant to any subscription agreement between the Company and any such shareholder unless the Representatives shall have agreed to such waiver. (xv) The Company shall apply the net proceeds received by it from the sale of the Shares as set forth in ~~this Section. It is understood~~the Registration Statement, ~~however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,”~~ the General Disclosure Package and the ~~last paragraph~~ Prospectus under “Use of ~~Section 8 below~~Proceeds.” (xvi) The Company shall not invest, or otherwise use the ~~Underwriters will pay all~~ proceeds received by the Company from its sale of ~~their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of~~ the Shares in such a manner as would require the Company or any of the ~~Securities by them~~ Subsidiaries to register as an investment company under the 1940 Act. (xvii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xviii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xix) The Company will use its best efforts to meet the requirements for qualification and ~~any advertising expenses connected with any offers they may make~~taxation as a REIT under the Code for its taxable year ending December 31, 2015, and unless the Board of Directors determines that it is no longer in the best interests of the Company or its stockholders to maintain the Company’s qualification as REIT under the Code, thereafter.

Appears in 1 contract

Sources: Equity Underwriting Agreement (American Farmland Co)

Covenants of the Company. ~~In further consideration of the agreements of the Underwriters herein contained, the~~ The Company covenants and agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) The Company ~~has filed or~~ will (A) prepare and timely file ~~each Statutory Prospectus (including the Prospectus)~~ with the Commission ~~pursuant to and in accordance with~~ under Rule 424(b) ~~not later than~~ (without reliance on Rule 424(b)(8)) under the ~~second business day following~~ Act the ~~earlier~~ Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the ~~date it~~ Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) during the Prospective Delivery Period (as defined below) during the Prospectus Delivery Period, not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is ~~first used and~~ not in compliance with the ~~execution and delivery of this Agreement. The Company has complied and will comply with Rule 433 of~~ Act, the Rules and Regulations, the Exchange Act or the rules and regulations of the Commission thereunder and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and during the Prospectus Delivery Period. (b) The Company will (i) not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed only to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping, and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (d) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein shall have been filed, (B) of the receipt of any ~~proposal~~ comments from the Commission relating to ~~amend or supplement~~ the Registration Statement, the General Disclosure Package or the Prospectus or any amendment or supplement thereto (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement related to the Notes or any amendment or supplement to the General Disclosure Package ~~and will afford~~ or the ~~Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; provided~~Prospectus, ~~however, that the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly~~ (D) of the ~~filing of any such amendment or supplement and of the institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement or of any part thereof or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for any such purpose or pursuant to Section 8A of the Act, and (E) the commencement of any examination pursuant to Section 8(d) or (e) of the Act concerning the Registration Statement. The Company will use its best efforts to prevent the issuance of any such ~~stop~~ order and to obtain as soon as possible ~~its lifting~~the lifting thereof, if issued. (c) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (d) The Company will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) of the Rules and Regulations following the date such final terms have been established for all classes of the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433 of the Rules and Regulations, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. (e) If, at any time ~~when~~ during the Prospectus Delivery Period, the Company receives from the Commission a ~~prospectus~~ notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the ~~Securities~~ Notes, in a form and substance reasonably satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the ~~opinion~~ Registration Statement that was the subject of ~~counsel~~ the notice under Rule 401(g)(2) under the Act or for which the ~~Underwriters~~ Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be. (f) If, immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form and substance reasonably satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form and substance reasonably satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired Registration Statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (~~or but~~ g) The Company agrees to pay the required filing fees to the Commission relating to the Notes within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (h) The Company will cooperate with the Representatives in endeavoring to qualify the Notes for sale under the ~~exemption~~ securities laws of such jurisdictions as the Representatives may reasonably have designated in ~~Rule 172 would be)~~ writing and will make such applications, file such documents, furnish such information, and take such action as may be reasonably required to so qualify the Notes and maintain such qualifications during the Prospectus Delivery Period; provided the Company shall not be ~~delivered~~ required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. (i) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a prospectus to investors (or, in lieu thereof, the notice referred to under Rule 173(a) under the ~~Securities~~ Act) is required under the Act (the “Prospectus Delivery Period”) as many copies of the Prospectus in ~~connection~~ final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (j) The Company will comply with ~~sales by any Underwriter or dealer~~the Act, the Rules and Regulations, the Exchange Act, the rules and regulations of the Commission under the Exchange Act, the Trust Indenture Act and the rules and regulations of the Commission under the Trust Indenture Act, so as to permit the completion of the public offer and sale of the Notes as contemplated in this Agreement and the Prospectus. If, during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or condition exist as a result of ~~which~~ which, in the ~~General Disclosure Package~~ judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend the Registration Statement or amend or supplement the Prospectus ~~as then amended or supplemented would~~ so that the same does not include an any untrue statement of a material fact or and does not omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser) not misleading, or, if it is necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission, in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an appropriate amendment to the Registration Statement or amendment or supplement to the Prospectus or (ii) prepare and file with the Commission, in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an appropriate filing under the Exchange Act, which shall be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, that reflects such event or condition and related matters or complies with applicable law, as the case may be. (k) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package so that it does not include any untrue statement of material fact and does not omit to state a material fact necessary in order to make the statements therein, in the light of the ~~circumstances under which they were made~~circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus then on file, or if ~~for~~ it is necessary at any ~~other reason it shall be necessary during the same period~~ time to amend or supplement the General Disclosure Package ~~or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order~~ to comply with ~~the provisions of the Securities Act, the Exchange Act or the Trust Indenture Act~~applicable law, the Company promptly will ~~notify~~ either (i) prepare, file with the ~~Representatives of such event,~~ Commission (if required) and ~~if such event shall occur~~ furnish to the Underwriters an appropriate amendment or ~~if, in the opinion of counsel for the Underwriters, it is necessary at any time~~ supplement to ~~amend~~ the General Disclosure Package or ~~the Prospectus to comply with the Securities Act, the Company will promptly~~ (ii) prepare and file with the Commission, ~~at its own expense~~in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an ~~amendment~~ appropriate filing under the Exchange Act which shall be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus that reflects such event or ~~supplement which will correct~~ condition and related matters, eliminates such ~~statement~~ conflict or ~~omission or an amendment which will effect such compliance. Neither~~ complies with applicable law, as the ~~Representatives consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof~~case may be. (fl) ~~As soon as practicable, but not later than 16 months, after the date of this Agreement, the~~ The Company will make generally available to its ~~securityholders an earning statement covering a period of at least 12~~ security holders, as soon as it is practicable to do so, but in any event not later than 16 months ~~beginning~~ after the effective date of ~~this Agreement and satisfying~~ the ~~provisions~~ Registration Statement, an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules~~ Act and ~~Regulations~~will advise you in writing when such statement has been so made available. (g) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case prior to 3:00 P.M. New York City time on the business day next succeeding the date of this Agreement or as soon as possible, with respect to any amendment or supplement, during the period mentioned in Section 4(e) above and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (h) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company shall not be required to qualify to do business in any jurisdiction or to file or consent or otherwise subject itself to service of process or taxation in any jurisdiction where it is not already so subject. (i) The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Date. (jm) During the period beginning ~~from~~ on the date hereof and continuing to ~~and including~~ the date 30 that is 90 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the SecuritiesClosing Date, without the prior written consent of ~~the Representatives. (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated~~Deutsche Bank Securities Inc., the Company will ~~pay~~ not offer, sell, contract to sell or ~~cause to be paid all expenses incident~~ otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the ~~performance~~ Notes. (n) The Company shall apply the net proceeds of its ~~obligations under this Agreement, including: (i) the fees, disbursements and expenses~~ sale of the ~~Company’s counsel and the Company’s accountants~~ Notes as set forth in ~~connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Indenture,~~ the Registration Statement, ~~any preliminary prospectus~~the General Disclosure Package and the Prospectus. (o) The Company shall not invest, or otherwise use, the ~~Prospectus, any Issuer Free Writing Prospectus and amendments and supplements to~~ proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of the ~~foregoing~~Significant Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will not take, ~~including all printing costs associated therewith~~directly or indirectly, ~~and~~ any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the ~~mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery~~ stabilization or manipulation of the ~~Securities to the Underwriters, including~~ price of any ~~transfer or other taxes payable thereon, (iii) the cost of printing certificates representing the Securities, (iv) any fees charged by~~ securities ~~rating services for rating the Securities, (v) the fees and expenses~~ of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vi) travel and lodging expenses of officers and employees of the Company for any “road show” undertaken in connection with the marketing of the offering of the Securities, and one-half of the cost of any aircraft chartered in connection with the road show, (vii) any fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (viii) 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. It is understood, however, that except as provided in this Section, Section 6 entitled “Indemnity and Contribution,” and the last paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeCompany.

Appears in 1 contract

Sources: Underwriting Agreement (Flowers Foods Inc)

Common use of Covenants of the Company Clause in Contracts