Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act. 2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission. 3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment. 4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects. 5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act. 6. 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.
Appears in 7 contracts
Sources: Placement Agency Agreement (WORK Medical Technology Group LTD), Placement Agency Agreement (Ostin Technology Group Co., Ltd.), Placement Agency Agreement (Lichen China LTD)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) filing system or any successor thereto.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Senior Notes, (iii) any fees and expenses of the Indenture Trustee and the Series Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Senior Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Senior Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, ; or if (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Senior Notes and, (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through ▇▇▇▇▇ shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required for, and otherwise cooperate in, qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Senior Notes or any security convertible into or exchangeable for Senior Notes or any debt securities of substantially similar to Senior Notes (except for the CompanySenior Notes issued pursuant to this Agreement).
Appears in 7 contracts
Sources: Underwriting Agreement (Virginia Electric & Power Co), Underwriting Agreement (Virginia Electric & Power Co), Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 24 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 7 contracts
Sources: Underwriting Agreement (Iveda Solutions, Inc.), Underwriting Agreement (Iveda Solutions, Inc.), Underwriting Agreement (Iveda Solutions, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 5 contracts
Sources: Underwriting Agreement (Good Times Restaurants Inc), Underwriting Agreement (Good Times Restaurants Inc), Underwriting Agreement (Good Times Restaurants Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, the Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., Eastern Time, on the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) During three months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriters, which shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriters, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriters the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, for a period ending at 5:00 P.M., Eastern Time, on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Underwriters, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its best efforts to effect and maintain the Placement Agent with listing of the Class A Ordinary Shares on the Nasdaq Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use its best efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 5 contracts
Sources: Underwriting Agreement (Linkers Industries LTD), Underwriting Agreement (Linkers Industries LTD), Underwriting Agreement (Linkers Industries LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably objects within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Representative in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Units, the Common Stock and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 5 contracts
Sources: Underwriting Agreement (Capnia, Inc.), Underwriting Agreement (Capnia, Inc.), Underwriting Agreement (Capnia, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto and file such final term sheet in compliance with Rule 433(d) under the time when Securities Act (as so filed, the Final Term Sheet); will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 Securities Exchange Act subsequent to after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) filing system or any successor thereto.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Senior Notes, (iii) any fees and expenses of the Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Senior Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Senior Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, ; or if (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Senior Notes and, (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through ▇▇▇▇▇ shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required for, and otherwise cooperate in, qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Senior Notes or any security convertible into or exchangeable for Senior Notes or any debt securities of substantially similar to Senior Notes (except for the CompanySenior Notes issued pursuant to this Agreement).
Appears in 4 contracts
Sources: Underwriting Agreement (Virginia Electric & Power Co), Underwriting Agreement (Dominion Energy, Inc), Underwriting Agreement (Dominion Energy Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Common Stock or the Warrants from any securities exchange upon which the Common Stock is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will promptly deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingNew York City time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 P.M., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
(l) [Intentionally omitted.]
(m) [Intentionally omitted.]
(n) The Company will not file issue press releases or engage in any other publicity without the Representative’s prior written consent, for a period ending at 5:00 P.M. Eastern time on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(o) The Company shall use its reasonable best efforts to engage, by the Closing Date (and for no less than two (2) years following the Closing Date) ▇▇▇▇ ▇▇▇▇▇▇▇ International as its financial public relations firm. The terms and conditions of such engagement shall be reasonably determined by the Company. The Company further agrees to consult with the Representative as is customary within the securities industry prior to the distribution to third parties of any financial information, news releases, or other publicity regarding the Offering, it being agreed that the Company shall give the Representative no less than twelve (12) hours prior notice of any such amendment distribution and a reasonable opportunity during or supplement prior to which such period to review the Placement Agent reasonably objectscontents of the proposed distribution.
5(p) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representative, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders or to pay any accrued salaries or bonuses to any employees or former employees.
(q) The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock and the Warrants on the NASDAQ Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a result of a transaction approved by the holders of a majority of the voting securities of the Company. If the Company fails to maintain such listing of its Common Stock or Warrants, on the NASDAQ Capital Market or other Trading Market, for a period of three (3) years from the Effective Date, the Company, at its expense, shall obtain and keep current a listing of such securities in the Standard & Poor’s Corporation Records Services or Mergent’s Industrial Manual; provided that Mergent’s OTC Industrial Manual is not sufficient for these purposes.
(r) During the period when the Prospectus Delivery Periodis required to be delivered under the Securities Act and for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(s) The Company shall use its best efforts to maintain the effectiveness of the Registration Statement and a current Prospectus relating thereto for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding. During any period when the Company fails to have maintained an effective Registration Statement or a current Prospectus relating thereto and a holder of a Firm Warrant, Option Warrant or Underwriters’ Warrant desires to exercise such warrant and, in the manner required opinion of counsel to the holder, Rule 144 is not available as an exemption from registration for the resale of the shares of Common Stock underlying such warrant (such shares, the “Warrant Shares”), the Company shall immediately file a registration statement registering the resale of the Warrant Shares and use its best efforts to have it declared effective by the Exchange ActCommission within thirty (30) days.
6. (t) The Company will use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
(u) The Company will not take, and will cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any Securities.
(v) The Company shall cause to be prepared and delivered to the Representative, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the Companyfollowing conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 4 contracts
Sources: Underwriting Agreement (COPsync, Inc.), Underwriting Agreement (COPsync, Inc.), Underwriting Agreement (COPsync, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities from any securities exchange upon which the Securities are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with all requirements imposed upon it by the Placement Agent Act, as now and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunderforce, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, the Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment Disclosure Materials) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus or is not yet available to file under prospective purchasers, the Exchange Act any Incorporated Document Disclosure Materials) to comply with any lawthe Act, the Company will promptly prepare notify the Underwriters and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents Disclosure Materials) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 4 contracts
Sources: Underwriting Agreement (NUSATRIP Inc), Underwriting Agreement (NUSATRIP Inc), Underwriting Agreement (Click Holdings Ltd.)
Covenants of the Company. 1. The Company has delivered or made available, or covenants and agrees with the several Underwriters that:
(a) The Company will as promptly as practicable deliver or make available, to (A) prepare and timely file with the Placement Agent complete conformed copies Commission under Rule 424(b) of the 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 and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies in reliance on Rule 430A of the Registration Statement Rules and Regulations and (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when B) not file any amendment to the Registration Statement has been filed or becomes effective distribute an amendment or any supplement to the Base any Preliminary Prospectus or the Prospectus Supplement has of which the Representative shall not previously have been filed advised and will furnish furnished with a copy or to which the Placement Agent Representative shall have reasonably objected in writing or which is not in compliance with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. Rules and Regulations.
(b) The Company will file promptly all reports comply with the Act and any definitive proxy 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 Units as contemplated in this Agreement, the Registration Statement, the General Disclosure Package and the Prospectus. If during the period in which a prospectus (or information statements in lieu thereof the notice referred to under Rule 173(a) under the Act) is required by law to be filed 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 Representative, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission pursuant an appropriate amendment to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend 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.
(c) If at any time prior to the Closing Date or Option Closing Date, 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 General Disclosure Package in order to make the statements therein, in the light of the circumstances existing at the time the General Disclosure Package is delivered to a purchaser, not misleading, 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 and file with the Commission an appropriate amendment or supplement to such Preliminary Prospectus or for additional information, and (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in such Preliminary Prospectus so that the Preliminary Prospectus as so amended or supplemented will not, in the light of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Documentcircumstances when it is so delivered, if anybe misleading, or any amendment or supplement thereto or any order preventing or suspending so that the use Preliminary Prospectus will comply with the law. For a period of five years from the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeEffective Date, or of any request by such earlier time upon which the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timebe liquidated, the Company will use its best efforts to obtain maintain the lifting registration of such order at the earliest possible momentSecurities and the Representative’s Securities under the provisions of the Exchange Act. For a period of five years from the Effective Date, or will file a new registration statement and use its best efforts such earlier time upon which the Company is required to have such new registration statement declared effective as soon as practicable. Additionallybe liquidated or the Representative shall no longer hold the Representative’s Purchase Option, the Company agrees that it shall comply with will not deregister the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, Units under the Securities Act, including with respect to Exchange Act without the timely filing prior written consent of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the CommissionRepresentative.
3. (d) The Company will cooperate with the Placement Agent and the Purchasers Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers Representative may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent 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 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.
(f) The Company will advise the Placement Agent Representative 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) of any request of the suspension Commission for amendment of the qualification Registration Statement or registration of (for supplement to the General Disclosure Package or any such exemption relating to) the Securities for offering, sale Prospectus or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeadditional information, and in the event (D) of the issuance by the Commission of any stop order suspending such qualification, registration the effectiveness of the Registration Statement or exemption, the use of the General Disclosure Package or the Prospectus or of the institution of any proceedings for that purpose. The Company shall will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the General Disclosure Package or the Prospectus and to obtain as soon as possible the withdrawal thereof at the earliest possible momentlifting thereof, if issued.
4. The (g) For a period of five years from the Effective Date, or until such earlier date upon which the Company will comply with is required to be liquidated, the Securities Act 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 the Exchange Act, and the rules and regulations filing of the Commission thereunder, so as Company’s Form 10-Q quarterly report.
(h) Prior to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawClosing Date, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersUnderwriters, an appropriate amendment as soon as they have been prepared by or are available to the Registration Statement or supplement 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 Incorporated Documents General Disclosure Package and the Prospectus.
(i) 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 Prospectus of their affiliates or family members any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, the consummation of an initial Business Combination; provided that is necessary the Initial Stockholders shall be entitled to reimbursement from the Company for their reasonable out-of-pocket expenses incurred in order connection with seeking and consummating an initial Business Combination.
(j) The Company will use its best efforts to make effect and maintain the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light listing of the circumstances under which they were madeSecurities and the Representative’s Securities on the American Stock Exchange.
(k) The Company will take all necessary actions to ensure, as that, upon and at all times after the case may be, not misleading, or so that effectiveness of the Registration Statement, it will be in compliance with (i) all applicable provisions of the Incorporated Documents S▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect and shall take such steps as are necessary to ensure that it will be in compliance with other applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the effectiveness of such provisions and (ii) the requirements of the American Stock Exchange’s AMEX Company Guide.
(l) For a period of five years from the Effective Date or any Prospectusuntil such earlier time upon which the Company is required to be liquidated, as so amended or supplementedthe Company, upon request from the Representative, will comply furnish to the Representative (Attn: Syndicate Manager with law. Before amending a copy to: General Counsel), copies of such financial statements and other periodic and special reports as the Registration Statement or supplementing Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Incorporated Documents or any Prospectus in connection 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 PlacementCommission 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 as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement.
(m) 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 furnish not take any action or actions which may prevent or disqualify the Placement Agent with a copy Company’s use of such proposed amendment Form S-1 (or supplement other appropriate form) for the registration of the Warrants and will not file any such amendment or supplement to which the Placement Agent reasonably objectsRepresentative’s Warrants under the Act.
5. During (n) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, Preliminary Prospectus and the Prospectus Delivery Period, the Company will duly file, on a timely basis, and shall file such reports with the Commission with respect to the sale of the Securities and the Trading Market all reports and documents application of the proceeds therefrom as may be required to be filed in accordance with Rule 463 under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (o) 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.
(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.
(q) 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) 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 Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(r) 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 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 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 the proxy statement which the Company will file for purposes of soliciting stockholder approval for the initial Business Combination.
(s) 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.
(t) 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.
(u) 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.
(v) 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 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.
(w) 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 Fund or which vote as a class with the Common Stock on a Business Combination.
(x) The Company hereby agrees that prior to commencing its due diligence investigation of any operating business or real estate assets which the Company seeks to acquire (“Target Business”) or obtaining the services of any vendor it will use its best efforts to attempt to cause the Target Business or the vendor to execute a waiver letter in the form attached hereto as Exhibit A and B, respectively. It is understood that the Company may not be able to obtain such letters in some or all circumstances and that, nonetheless, the Company may still proceed with such due diligence investigations and enter into agreements with such parties or obtaining of services, as applicable. Furthermore, each officer and director of the Company (other than the Initial Stockholders) shall execute a waiver letter in the form attached hereto as Exhibit C.
(y) The Company shall not take any action or omit to take any action that would cause the Company to be in breach or violation of its certificate of incorporation or by-laws.
(z) The Company agrees: (i) that, 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 acquisition is such as would not ordinarily require stockholder approval under applicable state la
Appears in 4 contracts
Sources: Underwriting Agreement (Grubb & Ellis Realty Advisors, Inc.), Underwriting Agreement (Grubb & Ellis Realty Advisors, Inc.), Underwriting Agreement (Grubb & Ellis Realty Advisors, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s ▇▇▇▇▇ filing system.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Senior Notes, (iii) any fees and expenses of the Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Senior Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Senior Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, or if ; (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act or (iii) the information contained in an Issuer Free Writing Prospectus conflicts with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Senior Notes and (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through the Commission’s ▇▇▇▇▇ filing system shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required and otherwise cooperate in qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Senior Notes or any security convertible into or exchangeable for Senior Notes or any debt securities of substantially similar to Senior Notes (except for the CompanySenior Notes issued pursuant to this Agreement).
Appears in 3 contracts
Sources: Underwriting Agreement (Dominion Resources Inc /Va/), Underwriting Agreement (Dominion Resources Inc /Va/), Underwriting Agreement (Virginia Electric & Power Co)
Covenants of the Company. 1. The In further consideration of the agreements of the Underwriters contained in this Agreement, the Company has delivered covenants and agrees with each Underwriter as follows:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further amendment or made available, or will as promptly as practicable deliver or make available, any supplement to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits)Statement, the Base Prospectus, and Basic Prospectus or the Prospectus Supplement, 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 distribute, prior to the Closing DateDate which shall be disapproved by you promptly after reasonable notice thereof; to advise you, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus or the Prospectus Supplement has been filed and will to furnish the Placement Agent you with copies thereof; to prepare a final term sheet, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system containing solely a description of the SEC. The Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company will with the Commission pursuant to Rule 433(d) under the Act; to file 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 the Prospectus Supplement 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 Placement. The Company will offering or sale of the Securities; to advise the Placement Agentyou, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationthereof, and (ii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending pursuant to Rule 401(g)(2) under the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration StatementAct, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution initiation or threatened institution threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a the Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time; and, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, registration or exemption, the Company shall to promptly use its best commercially reasonable efforts to obtain the withdrawal thereof of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement).
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof.
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities, in a form reasonably satisfactory to you. If at the earliest possible moment.
4Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the Securities, in a form reasonably satisfactory to you and will use its commercially reasonable efforts to cause such registration statement to become effective within 180 days after the Renewal Deadline. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as take all other action reasonably necessary or appropriate to permit the completion of the distribution public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. 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.
(d) Prior to 5:00 p.m., New York City time, on the New York business day next succeeding the date of this AgreementAgreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the Incorporated Documents and any Prospectus. If during notice referred to in Rule 173(a) under the period in which a prospectus Act) is required by law at any time prior to be delivered the expiration of nine months after the time of issue of the Prospectus in connection with the distribution offering or sale of any the Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), and if at such time any event shall occur have occurred as a result of which, in which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, as the case may benotice referred to in Rule 173(a) under the Act) is delivered, not misleading, or or, if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document document incorporated by reference in the Prospectus in order to comply with any lawthe Act, the Company will promptly Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such document and to prepare and file with the Commission, furnish without charge to each Underwriter and furnish at its own expense to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Placement Agent Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to dealersdeliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an appropriate amendment amended or supplemented Prospectus complying with Section 10(a)(3) of the Act.
(e) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
(f) To pay the required Commission filing fees relating to the Securities 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) To endeavor to qualify the Securities for offer and sale under the securities or supplement Blue Sky laws of such jurisdictions as you shall reasonably request provided, however, that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 7(g), (ii) file any general consent to service of process, (iii) subject itself to taxation in any such jurisdiction if it is not so subject or (iv) make any changes to its certificate of incorporation or bylaws.
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to 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 of the Securities and all other fees or expenses of the Company in connection with the preparation, printing, production and filing of the Registration Statement, the Incorporated Documents or Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus that is necessary in order to make and the statements in the Incorporated Documents Prospectus and any Prospectus as so amended or supplementedamendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers, in (ii) all costs and expenses related to the light preparation, issuance and delivery of the circumstances under which they were madeSecurities to the Underwriters, as the case may beincluding any transfer or other taxes payable thereon, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus (iii) all expenses in connection with the Placementqualification of the Securities for offer and sale under state securities laws as provided in Section 7(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the preparation of any Blue Sky or legal investment memorandum; (iv) any fees charged by rating agencies for the rating of the Securities, (v) any filing fees incident to, and any fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the costs and charges of the Trustee, and (vii) all other cost 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 clauses (iii) and (v) of this Section 7(h), and the last paragraph of Section 10, the Company Underwriters will furnish the Placement Agent with a copy pay all of such proposed amendment or supplement their costs and will not file expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 Securities by them and any securities of the Companyadvertising expenses connected with any offers they may make.
Appears in 3 contracts
Sources: Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s ▇▇▇▇▇ filing system.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Senior Notes, (iii) any fees and expenses of the Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Senior Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Senior Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, ; or if (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Senior Notes and, (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through the Commission’s ▇▇▇▇▇ filing system shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required and otherwise cooperate in qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Senior Notes or any security convertible into or exchangeable for Senior Notes or any debt securities of substantially similar to Senior Notes (except for the CompanySenior Notes issued pursuant to this Agreement).
Appears in 3 contracts
Sources: Underwriting Agreement (Dominion Resources Inc /Va/), Underwriting Agreement (Virginia Electric & Power Co), Underwriting Agreement (Virginia Electric & Power Co)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingEastern time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish to the Placement Agent with a copy Underwriters copies of the Prospectus in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern time, on the date of this Agreement, and (ii) the Trading Market all reports time that confirmations are given or sent, as specified by Rule 462(b)(2), and documents pay the applicable fees in accordance with Rule 111 of the Securities Act.
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the time periods E▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and in Rule 158 of the manner required by the Exchange ActRules and Regulations.
6. The (j) Except with respect to (i) securities of the Company will not takewhich may be issued in connection with an acquisition of another entity (or the assets thereof), directly (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or indirectly, any action designed to cause or result inthe assets thereof), or that has constituted (iii) the issuance of securities under the Company’s stock option plans with exercise or might reasonably be expected conversion prices at fair market value (as defined in such plans) in effect from time to constitutetime, during the three (3) months following the Closing Date, the stabilization Company or manipulation any successor to the Company shall not undertake any public or private offerings of any equity securities of the price Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
Appears in 3 contracts
Sources: Underwriting Agreement (Farmmi, Inc.), Underwriting Agreement (Farmmi, Inc.), Underwriting Agreement (Farmmi, Inc.)
Covenants of the Company. 1. (a) The Company Offering Statement has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectusbecome qualified, and the Prospectus SupplementCompany will file the Final Offering Circular, as amended or supplementedsubject to the prior approval of the Underwriters, in pursuant to Rule 253 and Regulation A, within the prescribed time period and will provide a copy of such quantities and at filing to the Underwriters promptly following such places filing.
(b) The Company will not, during such period as the Placement Agent reasonably requests. Neither Final Offering Circular would be required by law to be delivered in connection with sales of the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rules 251 and sale of 254 under the Securities pursuant Act or any similar rule(s)), file any amendment or supplement to the Placements other than Offering Statement or the Transaction Documents, Final Offering Circular unless a copy thereof shall first have been submitted to the Base Prospectus, Underwriters within a reasonable period of time prior to the Prospectus Supplement, filing thereof and the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities ActUnderwriters shall not have reasonably objected thereto in good faith.
2. (c) The Company will advise notify the Placement Agent promptly after it receives notice thereof of the time Underwriters promptly, and will, if requested, confirm such notification in writing: (1) when any amendment to the Registration Offering Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof filed; (i2) of any request by the Commission for any amendments to amend the Registration Offering Statement or any amendment or supplements to amend or supplement any Prospectus the Final Offering Circular or for additional information, and ; (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use qualification of the Base Prospectus Offering Statement or the final Prospectus Final Offering Circular, or the initiation of any prospectus supplement proceedings for that purpose or the threat thereof; (4) of becoming aware of the occurrence of any amendment or supplement thereto or event that in the judgment of the Company makes any post-effective amendment to statement made in the Registration Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular untrue in any material respect or that requires the making of any changes in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of any or exemption from registration of the Public Securities Shares for offering or offer and sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If at any time the Commission shall enter issue any such stop order suspending the qualification of the Offering Statement in connection with the offering contemplated hereby or order or notice in connection with sales of prevention or suspension at any timeCommon Stock pursuant to market making activities by the Underwriters, the Company will use its best efforts make every reasonable effort to obtain the lifting withdrawal of any such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, If the Company agrees that has omitted any information from the Offering Statement, it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate comply with the Placement Agent provisions of and make all requisite filings with the Purchasers in endeavoring Commission pursuant to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applicationsRegulation A, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange ActRules and Regulations and to notify the Underwriters promptly of all such filings.
(d) If, and at any time when the rules and regulations of Final Offering Circular relating to the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Shares is required by law to be delivered in connection with under the distribution Securities Act, the Company becomes aware of the occurrence of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of whichwhich the Final Offering Circular, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or in counsel to the opinion Underwriters, include any untrue statement of the Placement Agent a material fact or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Offering Statement, as then amended or supplemented, would, in the case may bereasonable judgment of counsel to the Company or counsel to the Underwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Underwriters, at any time to amend or supplement the Incorporated Documents Final Offering Circular or any Prospectus or to file under the Exchange Act any Incorporated Document Offering Statement to comply with any lawthe Securities Act or the Rules and Regulations, the Company will promptly notify the Underwriters and will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersCompany’s expense, an appropriate amendment to the Registration Offering Statement and/or an amendment or supplement to the Registration StatementFinal Offering Circular that corrects such statement and/or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Incorporated Documents Underwriters may reasonably request. The Company consents to the use of the Final Offering Circular or any Prospectus that amendment or supplement thereto by the Underwriters, and the Underwriters agrees to provide to each Investor, prior to the Closing and, as applicable, any Subsequent Closing, a copy of the Final Offering Circular and any amendments or supplements thereto.
(e) The Company will furnish to the Underwriters and their counsel, without charge (i) one conformed copy of the Offering Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (ii) so long as an offering circular relating to the Shares is required to be delivered under the Securities Act or the Rules and Regulations, as many copies of each Preliminary Offering Circular or the Final Offering Circular or any amendment or supplement thereto as each Underwriter may reasonably request.
(f) 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 in the Incorporated Documents and any Prospectus as so amended or supplementedtherein, in the light of the circumstances under which they were made, as the case may beexisting at that subsequent time, not misleading, the Company has or so that will promptly notify the Registration StatementUnderwriters in writing and has or will promptly amend or supplement, the Incorporated Documents at its own expense, such Written Testing-the-Waters Communication to eliminate or any Prospectus, as so amended correct such untrue statement or supplemented, omission.
(g) The Company will comply with law. Before amending any undertakings contained in the Registration Statement or supplementing Offering Statement.
(h) Prior to the Incorporated Documents or any Prospectus sale of the Shares to the Investors, the Company will cooperate with the Underwriters and their counsel in connection with the Placementregistration or qualification, or exemption therefrom, of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably request; provided, that in no event shall the Company will furnish the Placement Agent with a copy be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of such proposed amendment or supplement and will process in any jurisdiction where it is not file any such amendment or supplement to which the Placement Agent reasonably objectsnow so subject.
5. During the Prospectus Delivery Period, the (i) The Company will duly file, on a timely basis, with apply the Commission net proceeds from the offering and sale of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and Shares in the manner required by set forth in the Exchange ActFinal Offering Circular under the caption “Use of Proceeds.”
(j) The Company will use its reasonable best efforts to ensure that the Shares are listed on the NASDAQ.
6. (k) The Company will not takeat any time, directly or indirectly, take any action designed intended, or which might reasonably be expected, to cause or result in, or that has constituted or might reasonably be expected to which will constitute, the stabilization or manipulation of the price of the Shares to facilitate the sale or resale of any of the Shares.
(l) The Company will not (i) offer, pledge, sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise dispose of, directly or indirectly, any shares of capital stock of the Company or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, (ii) file or cause to be filed any registration statement with the Commission relating to the offering for any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, or (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 capital stock of the Company (the “Lock-Up Securities”) during the period commencing on and including the date hereof and ending on and including the 365th day following the date of this Agreement (as the same may be extended as described below, the “Lock-up Period”), except with respect to (A) the Shares to be sold hereunder, (B) the issuance of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date of the offering, issued after the date of this Agreement pursuant to the Company’s currently existing or hereafter adopted equity compensation plans or employment or consulting agreements or arrangements of which each Underwriter has been advised in writing or which have been filed with the Commission or (C) the issuance by the Company of stock options or shares of capital stock of the Company under any currently existing or hereafter adopted equity compensation plan or employment/consulting agreements or agreements of the Company, provided, however, that recipients of such shares of Common Stock agree to be bound by the terms of the lock-up letter described in Section 5(l) hereof. If the Representative agrees to waive or release any Lock-Up Securities from the Lock-Up Period, the Company will announce the impending release or waiver by press release through a major news service at least two business days before the effective date of such release or waiver.
(m) The Company shall not grant a waiver or consent to any of the provision of the lock-up agreements referenced in Section 9(h) herein without the prior written consent of the Representative.
Appears in 3 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Adomani, Inc.), Underwriting Agreement (Adomani, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials, or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(iii) The Company shall use commercially reasonable efforts to continually comply with the PRC laws and regulations governing the Company’s listing on an exchange not in the PRC, rectify or cure any non-compliance, and implement and maintain content control and other measures in continuing compliance with PRC laws and regulations after the Closing Date.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least three (3) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., Eastern Time, on the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriters, which shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this Offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriters, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriters the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, for a period ending at 5:00 P.M., Eastern time, on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Underwriters, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials, and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its commercially reasonable efforts to effect and maintain the Placement Agent with listing of the Shares on the Nasdaq Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use its best efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Controlled Entities not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 3 contracts
Sources: Underwriting Agreement (Baiya International Group Inc.), Underwriting Agreement (Baiya International Group Inc.), Underwriting Agreement (Baiya International Group Inc.)
Covenants of the Company. 1. (a) The Company has delivered hereby agrees to use reasonable best efforts (i) to maintain the listing or made availablequotation of the Common Stock on the Nasdaq Capital Market (or such other trading market that the Company applies to have the Common Stock traded on), or will (ii) as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to following the Closing Date, any offering material in connection with to secure the offering and sale listing of the Securities pursuant Common Shares on such trading market, and (iii) as promptly as practicable following date on which the Stockholder Approval is obtained (the “Stockholder Approval Date”), to secure the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies listing of all of the documents incorporated by reference therein and any other materials permitted by the Securities ActUnderlying Shares on such trading market.
2(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 Placement Agent promptly after it receives notice thereof business day following the date of execution of this Agreement and the Form-8-K will be filed within the time prescribed by the regulations of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. Commission.
(c) The Company will shall use its reasonable best efforts to timely file promptly (or obtain extensions in respect thereof and file within the applicable grace period) all reports and any definitive proxy or information statements required to be filed by the Company with after the Commission date hereof pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for Act. For so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated DocumentInvestor holds unregistered Securities, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment Company is not required to file reports pursuant to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Exchange Act, including with respect to the timely filing of documents thereunder, and it will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documents, prepare and furnish to such Investor and make publicly available in accordance with Rule 144(c) such information as may be reasonably is required for that purpose, provided such Investor to sell the Company shall not be required to qualify as a foreign corporation or to file a general consent to service Common Shares and the Underlying Shares under Rule 144.
(d) The Board of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution Directors of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best commercially reasonable efforts to obtain as soon as possible and in any event not later than the withdrawal thereof at 75th day after the earliest possible moment.
4. The Company will comply Closing Date for the purpose of obtaining the Stockholder Approval, with the Securities Act recommendation of the Company’s Board of Directors that the Charter Amendment and the Exchange Actissuance of shares to the Investors be approved, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered Company shall solicit proxies from its stockholders in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, therewith in the judgment of the Company or same manner as all other management proposals in the opinion of the Placement Agent or counsel for the Placement Agentsuch proxy statement and, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersextent authorized, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary all management-appointed proxyholders shall vote their proxies in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy favor of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsproposal.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Yield10 Bioscience, Inc.), Securities Purchase Agreement (Yield10 Bioscience, Inc.), Securities Purchase Agreement (Yield10 Bioscience, Inc.)
Covenants of the Company. 1. Each of the Company and the Subsidiary Guarantor, as the case may be, jointly and severally, covenants and agrees with the Underwriters as follows:
(a) The Company has delivered and the Subsidiary Guarantor will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or made available430C under the Act, or will as promptly as practicable deliver or make available, file any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex B hereto) to the Placement Agent complete conformed copies of extent required by Rule 433 under the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, Act; and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placementoffering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City as promptly as practical following the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object. The Company will promptly, upon the reasonable request of the Underwriters or counsel for the Underwriters, make any amendments or supplements to the Pricing Disclosure Package and the Prospectus that may be necessary or advisable in connection with the sale of the Securities by the Underwriters.
(c) The Company and the Subsidiary Guarantor will cooperate with the Underwriters to arrange for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such U.S. jurisdictions as the Underwriters may reasonably designate and will continue such qualifications in effect for as long as may be necessary to complete the distribution of the Securities; provided, however, that in connection therewith, neither the Company nor the Subsidiary Guarantor shall 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.
(d) The Company will advise the Placement AgentRepresentatives promptly, promptly after it receives notice thereof and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to amend the Registration Statement or to amend any amendment or supplement any to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information, and ; (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act; (v) of the occurrence of any event within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the Pricing Disclosure Package 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 Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending pursuant to Rule 401(g)(2) under the use Act; and (vii) of the Base Prospectus or receipt by the final Prospectus or Company of any prospectus supplement or notice with respect to any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or offer and sale in any jurisdiction, of jurisdiction or the institution initiation or threatened institution threatening of any proceeding for any such purpose, or of any request by ; and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its reasonable best efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or prevention suspending the use of any Preliminary Prospectus or suspension of such use. If the Commission shall enter Prospectus or suspending any such stop order or order or notice qualification of prevention or suspension at the Securities and, if any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible momentis issued, or will file a new registration statement and use its best efforts to have such new registration statement declared effective obtain as soon as practicable. Additionally, possible the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect withdrawal thereof.
(e) If at any time prior to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(bClosing Date (i) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or condition shall exist as a result of which, in the judgment which any of the Company Pricing Disclosure Package as then amended or in the opinion supplemented would include any untrue statement of the Placement Agent a material fact or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, misleading or if (ii) it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document Pricing Disclosure Package to comply with any applicable law, the Company will promptly immediately notify the Underwriters thereof and forthwith prepare and and, subject to paragraph (b) above, file with the Commission, Commission (to the extent required) and furnish at its own expense to the Placement Agent Underwriters and to dealerssuch dealers as the Representatives may designate, an appropriate amendment such amendments or supplements to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents Pricing Disclosure Package (or any Prospectus document to be filed with the Commission and incorporated by reference therein) as may be necessary so that is necessary in order to make the statements in any of the Incorporated Documents and any Prospectus Pricing Disclosure Package as so amended or supplementedsupplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, as the case may be, not misleading, be misleading or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, Pricing Disclosure Package will comply with law. Before amending .
(f) The Company will deliver, without charge, to each Underwriter (i) a conformed copy of the Registration Statement or supplementing the Incorporated Documents or any Prospectus as originally filed and each amendment thereto, in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement each case including all exhibits and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During consents filed therewith and (ii) during the Prospectus Delivery Period, as many copies of the Company will duly file, on a timely basis, with the Commission Prospectus (including all amendments and the Trading Market all reports supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be filed delivered but for Rule 172 under the Exchange Act within the time periods and Act) in the manner required by the Exchange Act.
6. 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 connection with sales of the price of Securities by any securities of the CompanyUnderwriter or dealer.
Appears in 3 contracts
Sources: Underwriting Agreement (Omega Healthcare Investors Inc), Underwriting Agreement (OHI Healthcare Properties Limited Partnership), Underwriting Agreement (OHI Healthcare Properties Limited Partnership)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package, the Prospectus or any Written Testing-the-Waters Communication, the Company shall furnish to the Underwriters for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein Company shall not file any such proposed amendment or supplement to which the Underwriters reasonably object within 36 hours of delivery thereof to the Underwriters and their counsel. The Underwriters shall not unreasonably object to, condition, or delay such filing. In no event shall the foregoing prevent the Company from timely filing any other materials permitted by report required to be filed under the Securities Exchange Act.
2. The (c) For so long as the Representatives’ Warrants are outstanding, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base General Disclosure Package, the Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofany Written Testing-the-Waters Communication, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement AgentRegistration Statement becomes effective, promptly after it receives notice thereof (iiv) of any request distribution of Written Testing-the-Waters Communication by or on behalf of the Commission to amend Company (other than through the Registration Statement or to amend or supplement any Prospectus or for additional informationRepresentative), and (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus Prospectus, any Written Testing-the-Waters Communication or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission ADSs from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, the General Disclosure Package and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 3 contracts
Sources: Underwriting Agreement (Safe-T Group Ltd.), Underwriting Agreement (Safe-T Group Ltd.), Underwriting Agreement (Safe-T Group Ltd.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document that would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents that are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, in New York City in such quantities as the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange ActUnderwriters may reasonably request.
6. 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.
Appears in 3 contracts
Sources: Underwriting Agreement (Hall of Fame Resort & Entertainment Co), Underwriting Agreement (Hall of Fame Resort & Entertainment Co), Underwriting Agreement (Hall of Fame Resort & Entertainment Co)
Covenants of the Company. 1. The Company acknowledges, covenants and agrees with the Underwriters that:
(a) The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has delivered or made available, or been used) pursuant to Rule 424(b) within the prescribed time period and will as promptly as practicable deliver or make available, provide evidence satisfactory to the Placement Agent complete conformed copies Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date (or Option Closing Date, if any) if in the reasonable opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement and or the General Disclosure Package, the Company shall furnish to the Underwriters for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Underwriters reasonably object within 36 hours of delivery thereof to the Underwriters and their counsel.
(c) After the date of this Agreement, 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 distribute, prior to shall promptly advise the Closing Date, any offering material Underwriters in connection with the offering and sale writing (i) of the Securities pursuant to the Placements other than the Transaction Documentsreceipt of any comments of, or requests for additional or supplemental information from, the Base ProspectusCommission, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofany Prospectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus General Disclosure Package, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeProspectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all applicable requirements imposed upon it by the Securities Act Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, and any the Registration Statement and the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriters or counsel to the Underwriters to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriters and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) The Company will promptly deliver to the Underwriters and Underwriters’ Counsel, upon their request, a signed copy of the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Incorporated Documents and any Prospectus as so amended or supplemented, in Company’s files manually signed copies of such documents for at least five (5) years after the light date of filing thereof. The Company will promptly deliver to each of the circumstances under which they were madeUnderwriters such number of copies of any Preliminary Prospectus, as the case may beProspectus, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectusand all amendments of and supplements to such documents, as so amended or supplementedif any, will comply with law. Before amending and all documents which are exhibits to the Registration Statement or supplementing the Incorporated Documents and Prospectus or any Prospectus in connection with amendment thereof or supplement thereto, as the PlacementUnderwriters may reasonably request. Prior to 10:00 A.M., New York time, on the Business Day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (e) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(f) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(g) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to be filed the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the Exchange Act within securities laws relating to the time periods offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualification in effect for so long as required for the manner required by distribution thereof; except that in no event shall the Exchange ActCompany 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 if it is otherwise not so subject.
6(h) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(1) Following the Closing Date, the individuals listed on Schedule B hereto (the “Lock-Up Parties”) shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement during the period that their respective lock-up agreements are in effect. The Company will not takedeliver to the Representative the agreements of Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex I. The Company will enforce the terms of each lock-up agreement and issue stop-transfer instructions to the transfer agent for the Shares with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable lock-up agreement.
(2) The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the Representative, it will not, for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), (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 action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation shares of capital stock of the price of Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; or (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 capital stock of the Company, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise. The restrictions contained in this Section 4(i)(2) shall not apply to (i) the shares of Common Stock to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof or (iii) the issuance by the Company of stock options or shares of capital stock of the Company under any equity compensation plan of the Company. Notwithstanding the foregoing, if (i) 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 (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this Section 4(i)(2) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of such material news or material event, as applicable, unless the Representative waives, in writing, such extension.
Appears in 3 contracts
Sources: Underwriting Agreement (Enerpulse Technologies, Inc.), Underwriting Agreement (Enerpulse Technologies, Inc.), Underwriting Agreement (Enerpulse Technologies, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus if Rule 430A is used or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is otherwise required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeunder Rule 424(b), the Company will use its best efforts file the Prospectus (properly completed if Rule 430A has been used) pursuant to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely manner by the Commissionfiling.
3. The Company will cooperate with (b) During the Placement Agent period beginning on the date hereof and ending on the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution later of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification Closing Date or registration of (or any such exemption relating to) the Securities for offeringdate as, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event reasonable opinion of the issuance of any order suspending such qualification, registration or exemptionUnderwriters’ Counsel, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with the distribution of any Securities contemplated sales by the Incorporated Documents an underwriter or any Prospectus dealer (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company prior to amending or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to supplementing the Registration Statement, the Incorporated Documents General Disclosure Package or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will shall furnish to the Placement Agent with Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement supplement, and will the Company shall not file any such proposed amendment or supplement to which the Placement Agent Underwriters reasonably objects.
5objects within 36 hours of delivery thereof to Underwriters’ Counsel. During The term “General Disclosure Package” means, collectively, (i) the Prospectus Delivery PeriodPreliminary Prospectus, the Company will duly fileas amended or supplemented, on a timely basis(ii) each issuer free writing prospectus, with the Commission and the Trading Market all reports and documents required to be filed as defined in Rule 433 under the Exchange Act within Securities Act, if any, identified in Schedule C hereto, (iii) the time periods pricing terms set forth in Schedule A to this Agreement, and (iv) any other free writing prospectus that the parties hereto shall hereafter expressly agree in the manner required by the Exchange Act.
6. The Company will not take, directly or indirectly, any action designed writing to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation treat as part of the price of any securities of the CompanyGeneral Disclosure Package.
Appears in 3 contracts
Sources: Underwriting Agreement (TechCreate Group Ltd.), Underwriting Agreement (TechCreate Group Ltd.), Underwriting Agreement (TechCreate Group Ltd.)
Covenants of the Company. 1. The Company has delivered or made availablecovenants with each Underwriter that:
(a) As soon as reasonably possible after the execution and delivery of this Agreement, or the Company will as 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 and make any other required filings pursuant to Rule 433 under the Securities Act. Upon request, the Company will promptly as practicable deliver or make availableto the Representative and to counsel for the Underwriters, to the Placement Agent complete extent not previously delivered, one fully executed copy or one conformed copies copy, certified by an officer of the Company, of the Registration Statement 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 of experts, as applicable, included therein or filed as a part thereofan exhibit thereto, and will deliver to the Representative for distribution to the Underwriters as many conformed copies of the Registration Statement foregoing (without excluding the exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places but including all documents incorporated therein) as the Placement Agent Representative may reasonably requestsrequest. Neither the The Company nor any of its directors and officers has distributed and none of them will distribute, prior also send to the Closing Date, any offering material in connection with Underwriters as soon as practicable after the offering date of this Agreement and sale of the Securities pursuant thereafter from time to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, time as many copies of the documents incorporated by reference therein Prospectus and any other materials permitted the Preliminary Prospectus as the Representative may reasonably request for the purposes required by the Securities Act.
2. The Company will advise (b) During such period (not exceeding nine months) after the Placement Agent promptly after it receives notice thereof commencement of the time when any amendment offering of the Securities as the Underwriters may be required by law to the Registration Statement has been filed deliver a Prospectus (or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies in lieu thereof, the parties acknowledging that such obligation is satisfied by filing such materials on notice referred to in Rule 173(a) under the ▇▇▇▇▇ system Securities Act), if any event relating to or affecting the Company, or of which the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to shall be filed advised in writing by the Company Representative shall occur, which in the Company’s reasonable opinion (after consultation with counsel for the Commission pursuant Representative) should be set forth in a supplement to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date an amendment of the Prospectus Supplement and for so long as in order to make the delivery Prospectus not misleading in the light of the circumstances when it is delivered to a prospectus purchaser (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), or if it is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission necessary to amend the Registration Statement or Prospectus to amend or supplement any Prospectus or for additional information, and (ii) of comply with the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeAct, the Company will use forthwith at its best efforts to obtain the lifting of such order at the earliest possible momentexpense prepare, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B Commission and 430C, as applicable, under the Securities Act, including with respect furnish to the timely filing of documents thereunder, Underwriters and will use its best efforts to confirm that any filings made dealers named by the Company under such Rule 424(b) are received in Representative a timely manner by reasonable number of copies of a supplement or supplements or an amendment or amendments to the Commission.
3. The Company Prospectus that will cooperate with supplement or amend the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) Prospectus so that as the Placement Agent and the Purchasers may reasonably request 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 supplemented or to file a general consent to service of process in any jurisdiction where amended it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations will not contain any untrue statement of the Commission thereunder, so as a material fact or omit to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and state any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) 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 supplements or amendments to the Prospectus, complying with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its 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 they were madethe 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, which need not be certified by independent public accountants) covering a period of twelve months beginning not later than the first day of the Company’s fiscal quarter next following the filing of the Prospectus pursuant to Rule 424.
(d) The Company will use commercially reasonable efforts promptly to do and 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) 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 commercially reasonable efforts to obtain the prompt removal thereof.
(f) If at any time when Securities remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representative, or take such other action, after consultation with counsel, as the Company believes is appropriate, (iii) use commercially reasonable efforts to cause any new registration statement or post-effective amendment that may be filed pursuant to clause (ii) above, to be declared effective and (iv) promptly notify the Representative of any such effectiveness. The Company will take all other commercially reasonable action as it deems appropriate to permit the public offering and sale of the Securities to continue as contemplated in the registration statement that was 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.
(g) The Company will use commercially reasonable efforts to qualify the Securities, as may be required, for offer and sale under the Blue Sky or legal investment laws of such jurisdictions as the Representative may designate, and will 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 misleadingbe required to qualify as a foreign corporation or dealer in securities, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file any general consents to service of process, under the Exchange Act laws of any Incorporated Document jurisdiction.
(h) Prior to comply with any lawthe termination of the offering of the Securities, the Company will promptly prepare and not file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate any amendment to the Registration Statement or supplement to the Registration Statement, Pricing Prospectus or the Incorporated Documents or any Prospectus that is necessary in order shall not have previously been furnished to make the statements in Representative or of which the Incorporated Documents and any Prospectus as so amended Representative shall not previously have been advised or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent Representative shall reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission object in writing and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required which has not been approved by the Exchange Act.
6. The Company will not takeRepresentative or its counsel, 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 acting on behalf of the price of any securities of the CompanyUnderwriters.
Appears in 3 contracts
Sources: Underwriting Agreement (Progress Energy Inc), Underwriting Agreement (Progress Energy Inc), Underwriting Agreement (Progress Energy Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 3 contracts
Sources: Underwriting Agreement (Siyata Mobile Inc.), Underwriting Agreement (Siyata Mobile Inc.), Underwriting Agreement (Siyata Mobile Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 3 contracts
Sources: Underwriting Agreement (PreTam Holdings Inc.), Underwriting Agreement (Society Pass Incorporated.), Underwriting Agreement (Society Pass Incorporated.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer-Represented Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(e) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to will promptly notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(f) The Company will promptly prepare upon request deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith. The Company will promptly deliver to each of the Underwriters such number of copies (electronic or otherwise) of any Preliminary Prospectus, the Prospectus, the Registration Statement, and furnish at its own expense all amendments of and supplements to the Placement Agent such documents, if any, and to dealers, an appropriate amendment all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(g) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(h) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(i) The Company will use its commercially reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction, to execute a general consent to service of process in any such jurisdiction, or to subject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(j) During the 180 days period following the date of this Agreement (the “Company Lock-up Period”), the Company may not, without the prior written consent of the Representative, (A) offer, issue, sell, agree or contract to sell, encumber, issue or grant any option for the sale of or otherwise dispose of any securities of the Company, except for (i) the Ordinary Shares to be sold in the Offering, (ii) any Option Shares, (iii) any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards granted pursuant to any stock incentive plan, stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Effective Date), (iv) the issuance by the Company of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding at the Effective Date (v) the issuance of Common Stock in connection with strategic acquisitions, or (vi) transfers by a stockholder (1) by bona fide gift, (2) by will or intestacy to the spouse, parents, siblings, first cousins or any lineal descendant of such stockholder or such stockholder’s spouse, including step relationships and relationships by adoption (each a, “family member”), (3) to any trust for the benefit of such stockholder or a family member of such stockholder, (4) to the estate of such stockholder, or (5) to any affiliate of such stockholder or by distribution to any partners, members or stockholders of such stockholder; or (B) file any registration statement relating to the offer or sale of any of the Company’s securities.
(k) Schedule II hereto contains a complete and accurate list of the Company’s executive officers and directors (collectively, and together with the Company, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(l) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by (i) a press release substantially in the form of Annex V hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two (2) Business Days before the effective date of the release or waiver.
(m) For a period of one year from the Closing Date, the Company shall retain [ ] as the Company’s transfer agent and registrar for the Ordinary Shares or a transfer and registrar agent for the Ordinary Shares reasonably acceptable to the Representative.
(n) [Reserved].
(o) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative. The Representative acknowledges that the Auditor is acceptable to the Representative.
(p) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will not file deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such amendment item which is available on the E▇▇▇▇ system (or supplement to which the Placement Agent reasonably objectssuccessor thereto) need not be furnished in physical form.
5(q) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. Eastern Time on the first Business Day following the twenty-fifth (25th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(r) The Company hereby grants the Representative the right of first refusal for a period of twelve (12) months after the closing of this Offering to co-manage any future public or private equity or debt offering, including all equity linked financings (excluding (i) shares issued under any compensation or stock option plan approved by the Company’s shareholders, (ii) shares issued as consideration of an acquisition or as part of a strategic partnership or transaction and (iii) conventional banking arrangements and commercial debt financing) (each a “Subject Transaction”), undertaken by the Company or any successor to or current or future subsidiary of the Company. During The Company shall notify the Representative in writing of its intention to pursue a Subject Transaction. In such event, the Representative shall notify the Company of its election to pursue a Subject Transaction within ten (10) days of written notice by the Company.
(s) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Prospectus.
(t) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Ordinary Shares on the Nasdaq Stock Market, the NYSE or the NYSE American for at least three (3) years after the Closing Date.
(u) The Company, during the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(v) The Company will use its commercially reasonable efforts to do and in the manner perform all things required to be done or performed under this Agreement by the Exchange ActCompany prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Shares.
6. (w) The Company will not take, and will use its commercially reasonable efforts to cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of the CompanyShares.
(x) The Company shall cause to be prepared and delivered to the Representative, at its expense, within two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the Shares for at least the period during which a Prospectus relating to the Shares is required to be delivered under the Securities Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to E▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospec
Appears in 2 contracts
Sources: Underwriting Agreement (Fast Track Group), Underwriting Agreement (Fast Track Group)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will covenants and agrees with the Representative, and as promptly as practicable deliver or make availableapplicable, to the Placement Agent complete conformed copies of Representative acknowledges, covenants and agrees with the Company, that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably object within 24 hours of delivery thereof to the Representative and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Representative and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to the Placement Agent Representative such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Representative with a copy copies of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, in New York City in such quantities as the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange ActUnderwriters may reasonably request.
6. 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.
Appears in 2 contracts
Sources: Underwriting Agreement (Edible Garden AG Inc), Underwriting Agreement (Edible Garden AG Inc)
Covenants of the Company. 1. The Company has delivered or made availablecovenants with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, or the Company will as promptly as practicable deliver or make availableprepare the Prospectus setting forth the aggregate principal amount of Notes covered thereby and their terms not otherwise specified in the preliminary prospectus, the Underwriters’ names, the price at which the Notes are to be purchased by the Placement Agent complete conformed copies of Underwriters from the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofCompany, and conformed copies of such other information as the Registration Statement (without exhibits), the Base Prospectus, Representatives and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material deem appropriate in connection with the offering and sale of the Securities pursuant Notes; 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 Placements other than Underwriters as many copies of the Transaction DocumentsProspectus as they shall reasonably request including, if requested by the Base Underwriters, in addition to or in lieu thereof, electronic copies of the Prospectus. The Company shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) (i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(b) 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 the Representatives, the Prospectus Supplementis 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 (the “Prospectus Delivery Period”), the Registration StatementCompany will comply with the requirements of Rule 430B and will notify the Representatives immediately, copies and confirm the notice in writing, (i) of the documents incorporated by reference therein and any other materials permitted by transmittal to the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission for filing of the time when any amendment to the Registration Statement has been filed Statement, (ii) of the transmittal to the Commission for filing of any supplement or becomes effective amendment to the Prospectus or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required document to be filed by the Company with the Commission pursuant to Section 13(a)the 1934 Act, 14 or 15(d(iii) of the Exchange Act subsequent receipt of any comments from the Commission with respect to the date of the Registration Statement or Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agentor documents incorporated or deemed to be incorporated by reference therein, promptly after it receives notice thereof (iiv) of any request by the Commission for any amendment to amend the Registration Statement or to amend any amendment or supplement any to the Prospectus with respect to the Notes or for additional informationinformation relating thereto, and (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of the Public Securities proceedings for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such that purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter and, if any such stop order or order or notice of prevention or suspension at any timeis issued, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4(c) During the Prospectus Delivery Period, prior to amending or supplementing the Registration Statement (including any filing under Rule 462(b)), 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. The Company will comply prepare a final term sheet substantially in the form set forth as Schedule B hereto (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 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 Securities Act Representatives or counsel to the Underwriters shall reasonably object.
(d) The Company will deliver to each of the Representatives 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 Notes (including exhibits filed therewith or incorporated by reference therein and the Exchange Actdocuments incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3).
(e) The Company will furnish to the Representatives, and the rules and regulations of the Commission thereunder, so as from time to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in which connection with the offering, 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, the 1933 Act Regulations, the 1934 Act or 1934 Act Regulations including, if requested by the Underwriters, in addition to or in lieu thereof, electronic copies of the Prospectus.
(f) If, at any time when a prospectus is required by law the 1933 Act to be delivered in connection with the distribution sale of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)Notes, any event shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement AgentUnderwriters, it becomes necessary to amend or supplement the Incorporated Documents 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 either (i) forthwith prepare and furnish to the Representatives an amendment of or any supplement to the Prospectus or (ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, 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 under which they were made, as existing at the case may betime it is delivered, not misleading, or if it is necessary . If at any time to amend or supplement after the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersdate hereof, an appropriate amendment event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is state a material fact necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplementedtherein, in the light of the circumstances under which they were made, as existing at the case may betime it is used, not misleading, the Company will promptly notify the Representatives and will promptly amend or so that supplement in a manner reasonably satisfactory to the Registration StatementRepresentatives, at its own expense, the Incorporated Documents General Disclosure Package to eliminate or correct such untrue statement or omission. If at any Prospectus, time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as so amended a result of which such Issuer Free Writing Prospectus conflicted or supplemented, will comply would conflict with law. Before amending the information contained in the Registration Statement or supplementing the Incorporated Documents (or any other registration statement relating to the Notes) 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 connection with order to make the Placementstatements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will furnish promptly notify the Placement Agent with a copy 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.
(g) The Company represents and agrees that, unless it obtains the prior written consent of such proposed amendment or supplement the Representatives, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not file make any such amendment offer relating to the Notes that would constitute an “issuer free writing prospectus”, as defined in Rule 433, or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Periodthat would otherwise constitute a “free writing prospectus,” as defined in Rule 405, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed with the Commission; provided, however, that prior to the preparation of the Final Term Sheet in accordance with Section 3(c), the Underwriters are authorized to use the information with respect to the final terms of the Notes 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 or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(h) The Company will endeavor in good faith, in cooperation with the Representatives, to qualify the Notes for offering and sale under the Exchange 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 Notes 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 required for the distribution of the Notes.
(i) 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 covered thereby, an earning statement of the Company (in form complying with the provisions of Rule 158 of the 1933 Act within Regulations) covering a period of at least twelve months beginning not later than the time periods first day of the Company’s fiscal quarter next following the effective date of the Registration Statement. “Earning statement”, “make generally available” and “effective date” will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(j) The Company will use the net proceeds received by it from the sale of the Notes in the manner required by specified in the Exchange ActProspectus under the caption “Use of Proceeds” in all material respects.
6. (k) The Company currently intends to continue to elect to qualify as a “real estate investment trust” under the Code, and use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(l) The Company will not taketimely file any document which it is required to file pursuant to the 1934 Act prior to the termination of the offering of the Notes.
(m) The Company will not, directly between the date of this Agreement and the termination of any trading restrictions or indirectlyClosing Time, whichever is later, with respect to the Notes, without the prior written consent of the Representatives, offer or sell, grant any option for the sale of, or enter into any agreement to sell, 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 debt securities of the Company with a maturity of more than one year (other than the Notes which are to be sold pursuant to this Agreement and additional or expanded commitments to participate in the Company’s revolving line of credit) except as may otherwise be provided in this Agreement and as otherwise set forth in and contemplated by the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (HRPT Properties Trust), Underwriting Agreement (HRPT Properties Trust)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 Securities Exchange Act subsequent to after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) filing system or any successor thereto.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Senior Notes, (iii) any fees and expenses of the Indenture Trustee and the Series Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Senior Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Senior Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, ; or if (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Senior Notes and, (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through ▇▇▇▇▇ shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required for, and otherwise cooperate in, qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Senior Notes or any security convertible into or exchangeable for Senior Notes or any debt securities of substantially similar to Senior Notes (except for the CompanySenior Notes issued pursuant to this Agreement).
Appears in 2 contracts
Sources: Underwriting Agreement (Virginia Electric & Power Co), Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the last Option Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably objects within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Representative in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of sales of or dealings in the distribution of the Transaction Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Blue Calypso, Inc.), Underwriting Agreement (NeuroMetrix, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or will covenants with each Underwriter as promptly as practicable deliver or make available, follows:
(a) To furnish to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of expertsRepresentatives, as applicablewithout charge, filed as a part thereof, and conformed three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits)exhibits thereto) and to furnish to the Representatives in New York, the Base ProspectusNew York, and the Prospectus Supplement, 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 distributewithout charge, prior to 10:00 a.m. Eastern Time on the Closing Datebusiness day next succeeding the date of this Agreement and during the period mentioned in Section 7(g) or 7(h) below, as many copies of the Time of Sale Prospectus, the Prospectus and any offering material supplements and amendments (including prospectus wrappers) thereto or to the Registration Statement as the Representatives may reasonably request.
(b) To cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to the Representatives and the other Underwriters an “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale Offering of the Securities Shares. As used herein, the term “electronic Prospectus” means a form of Time of Sale Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, including, but not limited to, portable document format, or PDF, that may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers of the Shares; and (ii) it shall disclose the same information as the paper Time of Sale Prospectus, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate. The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise with the Placements other than Commission and in the Transaction DocumentsRegistration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative, the Base Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Time of Sale Prospectus, the Prospectus Supplement, .
(c) Before amending or supplementing the Registration Statement, copies the Time of Sale Prospectus or the documents incorporated Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus (including the Prospectus) required to be filed pursuant to such Rule, and to file any issuer free writing prospectus to the extent required by reference therein and any other materials permitted by Rule 433 under the Securities Act.
2. The (d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company will and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(e) Not to 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 the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Placement Agent Representatives promptly after it receives notice thereof of (i) when the time Registration Statement has become effective, (ii) when any amendment to the Registration Statement has been filed or becomes effective or effective, (iii) when any supplement to the Base Prospectus or any issuer free writing prospectus or any Permitted Testing-the-Waters Communication or any amendment to the Prospectus has been filed or distributed, (iv) of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or Prospectus or for additional information with respect thereto, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as practicable.
(g) If the Time of Sale Prospectus Supplement has 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 exist as a result of which it is 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 if any 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 to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when 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.
(h) If, during such period after the first date of the Offering as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under 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) under 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 Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(i) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use commercially reasonable efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will furnish pay any applicable fees in accordance with the Placement Agent with copies thereofSecurities Act, as soon as practicable; and the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A or 430C under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file promptly in a timely manner in accordance with such Rules).
(j) To file in a timely manner all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the Placement. The Company will advise Offering of the Placement Agent, promptly after it receives notice thereof Shares.
(ik) of any request by the Commission Promptly to amend the Registration Statement furnish such information or to amend or supplement any Prospectus or for additional information, take such action as the Representatives may reasonably request and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring otherwise to qualify the Securities Shares for offer and sale under the securities or “blue sky” laws of such states and other jurisdictions (United States and domestic or foreign) as the Placement Agent and the Purchasers may Representatives shall reasonably request and will make such applications, file such documentsrequest, and furnish to comply with such information laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be reasonably required for necessary to complete the distribution of the Shares; provided, however, 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 (excluding service of process with respect to file such a consent, the offer and provided further that sale of the Shares); and to promptly advise the Representatives of the receipt by the Company shall not be required of any notification with respect to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification of the Shares for offer or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any the initiation or threat threatening of any proceeding for any such purpose, .
(l) To make generally available to the Company’s security holders and in to the event Representatives as soon as practicable an earnings statement covering a period of at least 12 months beginning after the effective date of the issuance Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions 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.
4. The Company will comply with Section 11(a) of the Securities Act and Rule 158 thereunder.
(m) To use its commercially reasonable efforts to cause the Shares to be listed on the Exchange Actand to maintain such listing.
(n) During the period beginning on the date hereof and ending 180 days after the date of the Prospectus, and without the rules and regulations prior written consent of the Commission thereunder, so as Representatives with the authorization to permit release the completion lock-up letter on behalf of the distribution Underwriters, not to (i) issue, offer, sell, pledge, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, make any short sale, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, (ii) enter into any swap, forward contract, hedging transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Shares or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or (iv) publicly disclose or announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the grant of options to purchase Common Shares pursuant to the Company’s share option plans under the terms of such plans in effect on the date hereof and disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, provided such options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, or the sale of Common Shares to employees pursuant to the Company’s employee share purchase plans and disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus (or the filing of a registration statement on Form S-8 to register the Common Shares issuable under such plans), (C) the issuance by the Company of Common Shares upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Agreement of which the Representatives have been advised in writing, or (D) the issuance of Common Shares or securities exercisable for, convertible into or exchangeable for Common Shares in connection with any acquisition, merger, amalgamation, collaboration, licensing or other joint venture or strategic transaction involving the Company in an amount not to exceed 10% of the Company’s outstanding Common Shares as of the Closing Date, provided further that, in the case of an issuance pursuant to this clause (D), any recipient of Common Shares shall have executed and delivered to the Representatives a lock-up agreement in the form of Exhibit A hereto. If the Representatives agree to release or waive the restrictions set forth in a lock-up letter described in Section 6(k) above for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 through a major news service at least two business days before the effective date of the release or waiver.
(o) To prepare, if the Representatives reasonably request, a final term sheet relating to the Offering, containing only information that describes the final terms of the Offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date on which the final terms have been established for the Offering.
(p) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(q) Not to take, directly or indirectly, any action designed to, or which will constitute, or has constituted, or 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.
(r) 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 Securities as contemplated in this Agreement, Act) or use any “prospectus” (within the Incorporated Documents and any Prospectus. If during meaning of the period in which a prospectus is required by law to be delivered Securities Act) in connection with the offer or sale of the Shares, except in each case other than the Prospectus.
(s) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Shares.
(t) To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(u) To use its commercially reasonable efforts to cause the Securities to be eligible for clearance through DTC.
(v) To promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) the time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 7(n) above.
(w) If at any time following the distribution of any Securities contemplated by the Incorporated Documents Permitted Testing-the-Waters Communication, there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, in the judgment which such Permitted Testing-the-Waters Communication included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beexisting at that subsequent time, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with notify the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement Representatives and will not file any such amendment promptly amend or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.supplemen
Appears in 2 contracts
Sources: Underwriting Agreement (IBEX LTD), Underwriting Agreement (IBEX LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the last Option Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably objects within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Representative in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or of any amendment proceedings to remove, suspend or supplement thereto terminate from listing the Common Stock from any securities exchange upon which they are listed for trading, or of the threatening or initiation of any proceedings for any of such purposes, provided, however, that the Company need not comply with clauses (ii) and (iii) above if the post-effective amendment to or prospectus supplement is filed in connection with the Registration StatementCompany’s filing of a Form 8-K, of the suspension of the qualification of any of the Public Securities for offering Form 10-Q or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. Form 10-K. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of sales of or dealings in the distribution of the Transaction Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Perseon Corp), Underwriting Agreement (Perseon Corp)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingEastern time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish to the Placement Agent with a copy Underwriters copies of the Prospectus in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act , the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern time, on the date of this Agreement, and (ii) the Trading Market all reports time that confirmations are given or sent, as specified by Rule 462(b)(2), and documents pay the applicable fees in accordance with Rule 111 of the Securities Act.
(h) The Company will use its reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 16 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the effective date of the Registration Statement (which, for purposes of this paragraph, will be deemed to be the effective date of the Rule 462(b) registration statement, if applicable) that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time periods to time, (iv) the Shares to be sold hereunder, and in (v) the manner required issuance by the Exchange ActCompany of Shares upon the exercise of a Share option or warrant or the conversion of a security outstanding on the date hereof during the three (3) months following the date of execution of this Agreement, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
6. 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(k) Following the Closing Date, the stabilization or manipulation Company and any of the price individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
Appears in 2 contracts
Sources: Underwriting Agreement (Global Internet of People, Inc.), Underwriting Agreement (Global Internet of People, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials, or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now in effect and as may be hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(iii) The Company shall continually comply with the PRC laws and regulations governing the Company’s listing on an exchange not in the PRC, rectify or cure any non-compliance, and implement and maintain content control and other measures in continuing compliance with PRC laws and regulations.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least three (3) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. On the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its reasonable best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may reasonably designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s share option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriters, which consent shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this Offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriters, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriters the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, for a period ending at 5:00 P.M., Eastern time, on the first Business Day following the twenty-fifth (25th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Underwriters, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials, and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its reasonable best efforts to effect and maintain the Placement Agent with listing of the Shares on the Nasdaq Capital Market for at least three (3) years after the commencement of sales of this offering, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use commercially reasonably efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 2 contracts
Sources: Underwriting Agreement (Zhengye Biotechnology Holding LTD), Underwriting Agreement (Zhengye Biotechnology Holding LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representatives of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date (or Option Closing Date, if any) or such date, as amended in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (or supplementedin lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in such quantities and at such places as connection with sales by an underwriter or dealer (the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute“Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter reasonably object within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any Prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, and any the Registration Statement and the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or counsel to the Underwriter to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Tri-Tech Holding, Inc.), Underwriting Agreement (Tri-Tech Holding, Inc.)
Covenants of the Company. 1. The Company acknowledges, covenants and agrees with the Underwriters that:
(a) The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has delivered or made available, or been used) pursuant to Rule 424(b) within the prescribed time period and will as promptly as practicable deliver or make available, provide evidence satisfactory to the Placement Agent complete conformed copies Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement and or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor shall promptly advise the Underwriter in writing of (i) the receipt of any of its directors and officers has distributed and none of them will distributecomments of, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documentsor requests for additional or supplemental information from, the Base ProspectusCommission, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus any prospectus or the Prospectus Supplement has been filed Prospectus, (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of which, in which the judgment Prospectus would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(e) The Company will promptly deliver to the Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Incorporated Documents and any Prospectus as so amended or supplemented, in Company’s files manually signed copies of such documents for at least five (5) years after the light date of filing thereof. The Company will promptly deliver to each of the circumstances under which they were madeUnderwriters such number of copies of any Preliminary Prospectus, as the case may beProspectus, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectusand all amendments of and supplements to such documents, as so amended or supplementedif any, will comply with law. Before amending and all documents which are exhibits to the Registration Statement or supplementing the Incorporated Documents and Prospectus or any Prospectus in connection with amendment thereof or supplement thereto, as the PlacementUnderwriters may reasonably request. Prior to 10:00 a.m., New York time, on the Business Day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act; provided that such Preliminary Prospectus was filed with the Commission on or after November 18, 2013.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required to be filed under the Exchange Act within (ii) the time periods and in the manner required that confirmations are given or sent, as specified by the Exchange ActRule 462(b)(2).
6. (h) The Company will not takeuse its best efforts, directly in cooperation with the Representative, at or indirectly, any action designed prior to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation time of effectiveness of the price Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such domestic jurisdictions as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(1) Except with respect to (i) securities of the CompanyCompany which may be issued in connection with an acquisition of H&N (or the assets thereof), (ii) the issuance of securities pursuant to the exercise or conversion of Company securities or other rights to receive securities of the Company that exist as of the Closing Date, or (iii) the issuance of securities pursuant to an equity incentive plan, during the ninety (90) days following the Closing Date, the Company shall not undertake any public or private offerings of any equity securities of the Company without the written consent of the Representative, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Sources: Underwriting Agreement (RiceBran Technologies), Underwriting Agreement (RiceBran Technologies)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably objects within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Representative in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Transaction Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Transaction Securities for offering and sale under the securities laws relating to the offering or sale of the Transaction Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction, to execute a general consent to service of process in any such jurisdiction, or to subject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(i) Except with respect to the issuance of securities under any current equity compensation plans described in the Registration Statement and the Prospectus, neither the Company nor any successor to the Company shall undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) during the 90 day period following the Closing Date without the prior written consent of the Representative.
(j) During the 90 day period following the Closing Date, the Company will not file any such registration statement relating to the offer or sale of any of the Company’s securities, except a registration statement on Form S-8, or amendment or supplement to which thereafter filed with the Placement Agent reasonably objectsCommission in connection with any current equity compensation plans, without the consent of the Representative.
5. During (k) Following the Prospectus Delivery PeriodClosing Date, the Company will duly fileand any of the individuals listed on Schedule III hereto (the “Lock-Up Parties”), on a timely basis, with subject to the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and exceptions set forth in the manner required by agreement substantially in the Exchange Act.
6. The Company will form attached hereto as Annex I, shall not take, directly sell 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 otherwise dispose of any securities of the Company, whether publicly or in a private placement during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of Lock-Up Parties to the foregoing effect prior to the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex I. Notwithstanding the foregoing, if (x) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representative waives such extension in writing.
(l) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up letter described in Section 4(k) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex V hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver.
Appears in 2 contracts
Sources: Underwriting Agreement (NeuroMetrix, Inc.), Underwriting Agreement (NeuroMetrix, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to covenants and agrees with ------------------------ the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement several Underwriters that:
(without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. a) The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company Prospectus with the Commission pursuant to Section 13(a), 14 or 15(dand in accordance with Rule 424(b) not later than the second business day following the execution and delivery of this Agreement.
(b) Prior to the termination of the Exchange Act subsequent to the date offering of the Bonds, the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Supplement and for so long as will not effect such amendment or supplementation without the delivery consent of a prospectus is required in connection with the PlacementRepresentatives. The Company will also advise the Placement Agent, Representatives promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall and will use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeand, the Company will use its best efforts if issued, to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, possible the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect withdrawal thereof.
(c) If at any time when a prospectus relating to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Bonds is required by law to be delivered in connection with under the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)Act, any event shall occur occurs as a result of whichwhich the Prospectus as then amended or supplemented would include an untrue statement of a material fact, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Act, the Company promptly will promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the 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 6.
(d) For a period of at least eighteen months after the date of this Agreement, the Company will file with the Commission, within the times required by the Rules and Regulations, annual reports on Form 10-K and quarterly reports on Form 10-Q containing all information required by the Rules and Regulations or will otherwise make generally available to its security holders as promptly as practicable an earnings statement which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to Representatives copies of the Registration Statement or supplement to the Registration Statement(one of which will be signed and will include all exhibits), the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus preliminary prospectus used in connection with the Placementoffering of the Bonds, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives request.
(f) The Company will arrange for the qualification of the Bonds for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect as long as required for the distribution.
(g) During the period of five years hereafter, the Company will furnish to the Placement Agent with Representatives, and upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report for such proposed amendment year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report or supplement definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended, or mailed to securityholders generally and will not file any (ii) from time to time, such amendment or supplement to which other information concerning the Placement Agent Company as the Representatives may reasonably objectsrequest.
5. (h) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including all expenses incurred in connection with qualification of the Bonds for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, any fees charged by investment rating agencies for rating the Bonds, the cost of printing or other reproduction of this Agreement and any related documents and all expenses incurred in distributing to the Underwriters any preliminary prospectuses used in connection with the offering of the Bonds.
(i) During the Prospectus Delivery Periodperiod from the date of this Agreement to and including the earlier of (i) the termination of trading restrictions on the Bonds, as notified to the Company by the Representatives, or (ii) the third business day after the Closing Date, the Company will duly filenot offer, on a timely basissell, with contract to sell or otherwise dispose of any of its debt securities (other than the Commission Bonds), except pursuant to prior or concurrent contractual commitments which have been disclosed to the Representatives prior to the execution hereof and the Trading Market all reports and documents required to be filed except for borrowings under the Exchange Act within the time periods Company's revolving credit agreements and in the manner required by the Exchange Act.
6. 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 constitutelines of credit, the stabilization or manipulation private placement of securities and issuances of commercial paper, without the prior written consent of the price of any securities of the CompanyRepresentatives, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Sources: Underwriting Agreement (Rochester Gas & Electric Corp), Underwriting Agreement (Rochester Gas & Electric Corp)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will covenants and agrees with the Representative, and as promptly as practicable deliver or make availableapplicable, to the Placement Agent complete conformed copies of Representative acknowledges, covenants and agrees with the Company, that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably object within 24 hours of delivery thereof to the Representative and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Brain Scientific Inc.), Underwriting Agreement (Edible Garden AG Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingEastern time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish to the Placement Agent with a copy Underwriters copies of the Prospectus in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern time, on the date of this Agreement, and (ii) the Trading Market all reports time that confirmations are given or sent, as specified by Rule 462(b)(2), and documents pay the applicable fees in accordance with Rule 111 of the Securities Act.
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the time periods ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and in Rule 158 of the manner required by the Exchange ActRules and Regulations.
6. The (j) Except with respect to (i) securities of the Company will which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not takeundertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative, directly or indirectlywhich shall not be unreasonably withheld.
(k) Following the Closing Date, 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 entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
Appears in 2 contracts
Sources: Underwriting Agreement (Cornerstone Management, Inc.), Underwriting Agreement (Cornerstone Management, Inc.)
Covenants of the Company. 1The Company acknowledges, covenants and agrees with the Representative that:
(a) The Registration Statement, and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing. The Company has will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Ortoli Rosenstadt LLP, the Prospectus is no longer required by law to be delivered (or made availablein lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or will as promptly as practicable deliver dealer (the “Prospectus Delivery Period”), prior to amending or make available, to the Placement Agent complete conformed copies of supplementing the Registration Statement and or the Prospectus, the Company shall furnish to the Representative for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Representative reasonably object within 36 hours of delivery thereof to the Representative and Underwriters’ Counsel.
(c) After the date of this Agreement, 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 distribute, prior to shall promptly advise the Closing Date, any offering material Representative in connection with the offering and sale writing (i) of the Securities pursuant to the Placements other than the Transaction Documentsreceipt of any comments of, or requests for additional or supplemental information from, the Base ProspectusCommission, (ii) of the Prospectus Supplement, time and date of any filing of any post-effective amendment to the Registration Statement, copies of or any amendment or supplement to any prospectus, the documents incorporated by reference therein and any other materials permitted by General Disclosure Package or the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Prospectus, (iii) of the time when and date that any post-effective amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationeffective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement, and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement, or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(e) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(f) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(g) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(h) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(i) The Company will use its best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction, to execute a general consent to service of process in any such jurisdiction, or to subject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(j) During the six-month period following the date of this Agreement (the “Company Lock-up Period”), the Company may not, without the prior written consent of the Representative, (i) offer, sell, issue, contract to sell, pledge or grant any option to purchase, make any short sale, lend or otherwise dispose of , except in the Offering, any of our ordinary shares, including but not limited to any options or warrants to purchase the Company’s ordinary shares, or any securities that are convertible into or exchangeable for, or that represent the right to receive, the Company’s ordinary shares, or any such substantially similar securities, other than (A) pursuant to employee stock option plans existing on, or (B) upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date this Agreement was executed, or (C) in connection with any business acquisition.
(k) Schedule II hereto contains a complete and accurate list of the Company’s executive officers, directors, pre-initial public offering investors, employees who hold the Company’s outstanding ordinary shares, and holders of 5% or more of the Company’s outstanding ordinary shares (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(l) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(k) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver.
(m) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative. The Representative acknowledges that Kreit & C▇▇▇ CPA is acceptable to the Representative.
(n) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will not file deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such amendment item which is available on the E▇▇▇▇ system (or supplement to which the Placement Agent reasonably objectssuccessor thereto) need not be furnished in physical form.
5(o) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. Eastern time on the first Business Day following the fortieth (40th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(p) The Company hereby grants the Representative the right of first refusal for a period of eighteen (18) months after the closing of this Offering the right, on at least the same terms and conditions offered to us by other investment banking service providers, to provide investment banking services in all matters for which investment banking services are sought, which right is exercisable in the Representative’s sole discretion but non-assignable. During For these purposes, investment banking services shall include, without limitation, (i) acting as sole manager for any underwritten public offering; (ii) acting as an exclusive placement agent, or sole sales agent for any private equity, equity-linked or debt (excluding commercial bank debt) offerings in the United States. The Representative shall notify the Company of its intention to exercise its Right of First Refusal within ten (10) business days following notice in writing by the Company.
(q) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus.
(r) The Company will use its best efforts to effect and maintain the listing of the Firm Shares on the NYSE American for at least three (3) years after the Closing Date.
(s) The Company, during the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods and in the manner required by the Exchange Actthereby.
6. 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.
Appears in 2 contracts
Sources: Underwriting Agreement (Ryde Group LTD), Underwriting Agreement (Ryde Group LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein Company shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects within 36 hours of delivery thereof to the Underwriter and its counsel. The Underwriter shall not unreasonably object to, condition or delay such filing. In no event shall the foregoing prohibit the Company from timely filing any other materials permitted by report under the Securities Exchange Act.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriter in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Galmed Pharmaceuticals Ltd.), Underwriting Agreement (Galmed Pharmaceuticals Ltd.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingEastern time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish to the Placement Agent with a copy Underwriters copies of the Prospectus in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern time, on the date of this Agreement, and (ii) the Trading Market all reports time that confirmations are given or sent, as specified by Rule 462(b)(2), and documents pay the applicable fees in accordance with Rule 111 of the Securities Act.
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the time periods ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and in Rule 158 of the manner required by the Exchange ActRules and Regulations.
6. The (j) Except with respect to (i) securities of the Company will not takewhich may be issued in connection with an acquisition of another entity (or the assets thereof), directly (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or indirectly, any action designed to cause or result inthe assets thereof), or that has constituted (iii) the issuance of securities under the Company’s stock option plans with exercise or might reasonably be expected conversion prices at fair market value (as defined in such plans) in effect from time to constitutetime, during the three (3) months following the Closing Date, the stabilization Company or manipulation any successor to the Company shall not undertake any public or private offerings of any equity securities of the price Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
Appears in 2 contracts
Sources: Underwriting Agreement (TDH Holdings, Inc.), Underwriting Agreement (TDH Holdings, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 24 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Ainos, Inc.), Underwriting Agreement (Ainos, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to hereby agrees with the Placement Agent complete conformed copies that:
(a) The Company consents to the use by the Placement Agent of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a issuer free writing prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto and any issuer information used or referred to in any order preventing or suspending Permitted Free Writing Prospectus (as defined below) in connection with the use Offering.
(b) The Company will make “generally available” (as such term is described in Rule 158(b) of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment Act) to its security holders and to the Registration StatementPlacement Agent as soon as practicable, of the suspension of the qualification of any of the Public Securities for offering or sale but in any jurisdiction, of event not later than twelve months after the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing effective date of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent (as defined in Rule 158(c) under the issuance Act), an earnings statement of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain and the lifting Subsidiaries which need not be audited, complying with Section 11(a) of such order the Act (including, at the earliest possible momentoption of the Company, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, Rule 158 under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission).
3. (c) The Company will cooperate take all action required in connection with the Placement Agent and qualification of the Purchasers in endeavoring to qualify the Securities for sale Shares under the securities or blue sky laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make continue such applicationsqualification in effect so long as reasonably required; provided, 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.
(d) Whether or not the Offering or any of the transactions contemplated in this Agreement or the Registration Statement and Prospectus are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incidental to and in connection with: (A) the preparing, printing, filing and distributing of the Registration Statement, any Preliminary Prospectus, the Prospectus and any issuer free writing prospectus and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and provided further that the Company shall not be required to produce any new disclosure document. The Company willall other agreements, from time to timememoranda, prepare and file such statements, reports correspondence and other documents prepared and delivered in connection herewith, (B) negotiating, printing, processing and distributing (including, without limitation, word processing and duplication costs) and delivering, each of the Preliminary Prospectus, the Prospectus and any issuer free writing prospectus and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (C) the preparing, issuing and delivering the Shares, (D) qualifying the Shares for offer and sale under the securities or blue sky laws of the several states and (E) furnishing such copies of the Registration Statement, any Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, as are may reasonably be requested for use by the Placement Agent, (ii) all reasonable fees and expenses of the counsel, accountants and any other experts or may be required advisors retained by the Company, (iii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Shares by the Depository Trust Company for “book-entry” transfer, (iv) any listing fees of the Shares on the NASDAQ Stock Market, (v) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to continue such qualifications in effect for so long a period as the Placement Agent, (vi) all fees, disbursements and out-of-pocket expenses incurred by the Placement Agent may reasonably request for distribution in connection with its services to be rendered hereunder including, without limitation, reasonable travel and lodging expenses, reasonable expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by any such consultants, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures, including (subject to the following sentence) reasonable legal fees, (vii) the fees of FINRA in connection with its review of the SecuritiesOffering, and (viii) all other costs and expenses incident to the performance by the Company of its obligations hereunder. The Company will advise the Placement Agent promptly will not incur any costs to be reimbursed hereunder without the prior written consent of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offeringCompany; provided, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionat Closing, the Company shall use its best efforts to obtain reimburse the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act Placement Agent’s reasonable legal fees and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required expenses incurred by law to be delivered it in connection with the distribution Offering, up to a maximum aggregate of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)$30,000; provided, any event shall occur as a result of whichfurther, in the judgment that such reimbursement payment will fully satisfy all obligations of the Company or in the opinion of to reimburse the Placement Agent or counsel Agent’s legal fees for the Placement Agent, it becomes necessary to amend ’s selling efforts for the Offering through and including the Closing. The parties hereto agree that there are no outstanding reimbursable expenses or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense fees owing to the Placement Agent in respect of prior offerings of securities by the Company.
(e) Not to, and to dealersensure that no “affiliate” (as defined in Rule 501(b) of the Act) of the Company will, an appropriate amendment sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that would be integrated with the sale of the Shares and cause a violation of federal securities laws.
(f) Not to, and not to authorize or permit any person acting on its behalf to, distribute any offering material in connection with the offer and sale of the Shares other than the Registration Statement, any issuer free writing prospectus permitted to be distributed and the Prospectus and any amendments and supplements thereto or to the Registration Statement or supplement to and the Registration Statement, the Incorporated Documents or any Prospectus that is necessary prepared in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply compliance with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsthis Agreement.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (g) The Company will not take and will cause its controlled affiliates (within the meaning of Rule 144 under the Act) not to take, directly or indirectly, any action designed to cause or result in, or that which has constituted or which might reasonably be expected to constitutecause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Shares in violation of applicable law.
(h) To pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Shares or the sale thereof to the subscribers.
Appears in 2 contracts
Sources: Placement Agent Agreement (Superconductor Technologies Inc), Placement Agent Agreement (Superconductor Technologies Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to will promptly notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its commercially reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction, to execute a general consent to service of process in any such jurisdiction, or to subject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(i) During the 180 days period following the date of this Agreement (the “Company Lock-up Period”), the Company may not, without the prior written consent of the Representative, (i) offer, sell, issue, agree or contract to sell or issue or grant any option for the sale of any securities of the Company, except for (A) the issuance of Ordinary Shares upon the exercise or conversion of securities that are issued and outstanding on the date of this Agreement and are described in the Registration Statement and the Prospectus, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits, adjustments or combinations as set forth in such securities) or to extend the term of such securities, and (B) the issuance of securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith within 180 days following the Closing Date, and provided that any such issuance shall only be to a person (or to the equity holders of a person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; or (ii) file any registration statement relating to the offer or sale of any of the Company’s securities.
(j) Schedule II hereto contains a complete and accurate list of the Company’s executive officers, directors and holders of 5% or more of the Company’s Ordinary Shares except for the Selling Shareholders and the Resale Shareholders pursuant to the Resale Prospectus (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(k) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two Business Days before the effective date of the release or waiver.
(l) For a period of two years from the Closing Date, the Company shall retain VStock Transfer LLC as the Company’s transfer agent and registrar for the Ordinary Shares or a transfer and registrar agent for the Ordinary Shares reasonably acceptable to the Representative.
(m) [Reserved].
(n) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative.
(o) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will not file deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such amendment item which is available on the E▇▇▇▇ system (or supplement to which the Placement Agent reasonably objectssuccessor thereto) need not be furnished in physical form.
5(p) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. Eastern time on the first Business Day following the fortieth (40th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(q) The Company hereby grants the Representative the right of first refusal for a period of twelve (12) months after the closing of this Offering to act as sole investment banker, sole book-runner and/or sole placement agent, at the Representative’s sole discretion, for any and all future private and public equity, or debt offerings, including all equity linked financings (each a “Subject Transaction”), undertaken by the Company or any successor to or current or future subsidiary of the Company. During The Representative shall have the sole right to determine whether any other broker dealer shall have the right to participate in a Subject Transaction and the economic terms of such participation. The Company shall not retain, engage or solicit any additional investment banker, book-runner, financial advisor, underwriter and/or placement agent in a Subject Transaction unless Representative has either elected not to participate in the Subject Transaction or not responded within fifteen business days of the Company’s request to participate in the Subject Transaction.
(r) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus.
(s) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Ordinary Shares on the Nasdaq Stock Market, the NYSE, or the NYSE American for at least three (3) years after the Closing Date.
(t) The Company, during the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(u) The Company will use its commercially reasonable efforts to do and in the manner perform all things required to be done or performed under this Agreement by the Exchange ActCompany prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (v) The Company will not take, and will use its commercially reasonable efforts to cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of the CompanySecurities.
(w) The Company shall cause to be prepared and delivered to the Representative, at its expense, within two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act; (ii) it
Appears in 2 contracts
Sources: Underwriting Agreement (COR3&Co. (Holdings) LTD), Underwriting Agreement (COR3&Co. (Holdings) LTD)
Covenants of the Company. 1. (a) The Company Offering Statement has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectusbecome qualified, and the Prospectus SupplementCompany will file the Final Offering Circular, as amended or supplementedsubject to the prior approval of the Underwriters, in pursuant to Rule 253 and Regulation A, within the prescribed time period and will provide a copy of such quantities and at filing to the Underwriters promptly following such places filing.
(b) The Company will not, during such period as the Placement Agent reasonably requests. Neither Final Offering Circular would be required by law to be delivered in connection with sales of the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rules 251 and sale of 254 under the Securities pursuant Act or any similar rule(s)), file any amendment or supplement to the Placements other than Offering Statement or the Transaction Documents, Final Offering Circular unless a copy thereof shall first have been submitted to the Base Prospectus, Underwriters within a reasonable period of time prior to the Prospectus Supplement, filing thereof and the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities ActUnderwriters shall not have reasonably objected thereto in good faith.
2. (c) The Company will advise notify the Placement Agent promptly after it receives notice thereof of the time Underwriters promptly, and will, if requested, confirm such notification in writing: (1) when any amendment to the Registration Offering Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof filed; (i2) of any request by the Commission for any amendments to amend the Registration Offering Statement or any amendment or supplements to amend or supplement any Prospectus the Final Offering Circular or for additional information, and ; (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use qualification of the Base Prospectus Offering Statement or the final Prospectus Final Offering Circular, or the initiation of any prospectus supplement proceedings for that purpose or the threat thereof; (4) of becoming aware of the occurrence of any amendment or supplement thereto or event that in the judgment of the Company makes any post-effective amendment to statement made in the Registration Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular untrue in any material respect or that requires the making of any changes in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of any or exemption from registration of the Public Securities Shares for offering or offer and sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If at any time the Commission shall enter issue any such stop order suspending the qualification of the Offering Statement in connection with the offering contemplated hereby or order or notice in connection with sales of prevention or suspension at any timeCommon Stock pursuant to market making activities by the Underwriters, the Company will use its best efforts make every reasonable effort to obtain the lifting withdrawal of any such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, If the Company agrees that has omitted any information from the Offering Statement, it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate comply with the Placement Agent provisions of and make all requisite filings with the Purchasers in endeavoring Commission pursuant to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applicationsRegulation A, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange ActRules and Regulations and to notify the Underwriters promptly of all such filings.
(d) If, and at any time when the rules and regulations of Final Offering Circular relating to the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Shares is required by law to be delivered in connection with under the distribution Securities Act, the Company becomes aware of the occurrence of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of whichwhich the Final Offering Circular, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or in counsel to the opinion Underwriters, include any untrue statement of the Placement Agent a material fact or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Offering Statement, as then amended or supplemented, would, in the case may bereasonable judgment of counsel to the Company or counsel to the Underwriters, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Underwriters, at any time to amend or supplement the Incorporated Documents Final Offering Circular or any Prospectus or to file under the Exchange Act any Incorporated Document Offering Statement to comply with any lawthe Securities Act or the Rules and Regulations, the Company will promptly notify the Underwriters and will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersCompany’s expense, an appropriate amendment to the Registration Offering Statement and/or an amendment or supplement to the Registration StatementFinal Offering Circular that corrects such statement and/or omission or effects such compliance and will deliver to the Underwriters, without charge, such number of copies thereof as the Incorporated Documents Underwriters may reasonably request. The Company consents to the use of the Final Offering Circular or any Prospectus that amendment or supplement thereto by the Underwriters, and the Underwriters agrees to provide to each Investor, prior to the Initial Closing and, as applicable, any Subsequent Closing, a copy of the Final Offering Circular and any amendments or supplements thereto.
(e) The Company will furnish to the Underwriters and their counsel, without charge (i) one conformed copy of the Offering Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (ii) so long as an offering circular relating to the Shares is required to be delivered under the Securities Act or the Rules and Regulations, as many copies of each Preliminary Offering Circular or the Final Offering Circular or any amendment or supplement thereto as each Underwriter may reasonably request.
(f) 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 in the Incorporated Documents and any Prospectus as so amended or supplementedtherein, in the light of the circumstances under which they were made, as the case may beexisting at that subsequent time, not misleading, the Company has or so that will promptly notify the Registration StatementUnderwriters in writing and has or will promptly amend or supplement, the Incorporated Documents at its own expense, such Written Testing-the-Waters Communication to eliminate or any Prospectus, as so amended correct such untrue statement or supplemented, omission.
(g) The Company will comply with law. Before amending any undertakings contained in the Registration Statement or supplementing Offering Statement.
(h) Prior to the Incorporated Documents or any Prospectus sale of the Shares to the Investors, the Company will cooperate with the Underwriters and their counsel in connection with the Placementregistration or qualification, or exemption therefrom, of the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably request; provided, that in no event shall the Company will furnish the Placement Agent with a copy be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of such proposed amendment or supplement and will process in any jurisdiction where it is not file any such amendment or supplement to which the Placement Agent reasonably objectsnow so subject.
5. During the Prospectus Delivery Period, the (i) The Company will duly file, on a timely basis, with apply the Commission net proceeds from the offering and sale of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and Shares in the manner required by set forth in the Exchange ActFinal Offering Circular under the caption “Use of Proceeds.”
(j) The Company will use its reasonable best efforts to ensure that the Shares are listed on the NASDAQ.
6. (k) The Company will not takeat any time, directly or indirectly, take any action designed intended, or which might reasonably be expected, to cause or result in, or that has constituted or might reasonably be expected to which will constitute, the stabilization or manipulation of the price of the Shares to facilitate the sale or resale of any of the Shares.
(l) The Company will not (i) offer, pledge, sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise dispose of, directly or indirectly, any shares of capital stock of the Company or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, (ii) file or cause to be filed any registration statement with the Commission relating to the offering for any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, or (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 capital stock of the Company (the “Lock-Up Securities”) during the period commencing on and including the date hereof and ending on and including the 365th day following the date of this Agreement (as the same may be extended as described below, the “Lock-up Period”), except with respect to (A) the Shares to be sold hereunder, (B) the issuance of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date of the offering, issued after the date of this Agreement pursuant to the Company’s currently existing or hereafter adopted equity compensation plans or employment or consulting agreements or arrangements of which each Underwriter has been advised in writing or which have been filed with the Commission or (C) the issuance by the Company of stock options or shares of capital stock of the Company under any currently existing or hereafter adopted equity compensation plan or employment/consulting agreements or agreements of the Company, provided, however, that the Company’s Chief Executive Officer agree to be bound by the terms of the lock-up letter described in Section 5(l) hereof. If the Representative agrees to waive or release any Lock-Up Securities from the Lock-Up Period, the Company will announce the impending release or waiver by press release through a major news service at least two business days before the effective date of such release or waiver.
(m) The Company shall not grant a waiver or consent to any of the provision of the lock-up agreements referenced in Section 9(i) herein without the prior written consent of the Representative.
Appears in 2 contracts
Sources: Underwriting Agreement (VirTra, Inc), Underwriting Agreement (VirTra, Inc)
Covenants of the Company. 1. The Company has delivered or made available, or covenants with each Underwriter as follows:
(a) The Company will as promptly as practicable deliver or make available, furnish to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of expertsRepresentatives, as applicablewithout charge, filed as a part thereof, and conformed four (4) signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits)exhibits thereto) and to furnish to the Representatives in New York City, the Base Prospectus, and the Prospectus Supplement, 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 distributewithout charge, prior to 10:00 a.m. New York City time on the Closing DateBusiness Day next succeeding the date of this Agreement and during the period mentioned in Section 6(e) or 6(f) below, any offering material in connection with the offering and sale as many copies of the Securities pursuant to the Placements other than the Transaction Documents, the Base Time of Sale Prospectus, the Prospectus Supplementand any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(b) Prior to the termination of the Offering, the Registration Statement, copies Company will not file any amendment of the documents incorporated by reference therein Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives with a copy for their review prior to filing and will not file any other materials permitted by such proposed amendment, supplement or Rule 462(b) Registration Statement to which the Securities Act.
2Representatives reasonably object. The Company will cause the Prospectus, 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. The Company will promptly advise the Placement Agent promptly after it receives notice thereof Representatives (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the time when Offering, any amendment to the Registration Statement has shall have been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofbecome effective, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (iiii) of any request by the Commission to amend or its staff for any amendment of the Registration Statement, any Rule 462(b) Registration Statement or for any supplement to amend or supplement any the Prospectus or for any additional information, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Preliminary Prospectus or the final Prospectus Prospectus, or of the institution of any prospectus supplement proceedings for that purpose or pursuant to Section 8A of the Securities Act and (v) of the receipt by the Company of any amendment or supplement thereto or any post-effective amendment notification with respect to the Registration Statement, of the suspension of the qualification of any of the Public Securities Units for offering or sale in any jurisdiction, of jurisdiction or the institution or threatened institution threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its best efforts to prevent the issuance of any such stop order or prevention the occurrence of any such suspension or suspension objection to the use of the Registration Statement and, upon such use. If issuance, occurrence or notice of objection, to obtain as soon as possible the Commission shall enter any withdrawal of such stop order or order relief from such occurrence or notice of prevention objection, including, if necessary, by filing an amendment to the Registration Statement or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use using its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable. Additionally.
(c) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, the Company agrees that it shall comply will furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the provisions of Rules Commission within the applicable period specified in Rule 424(b), 430A, 430B and 430C, as applicable, ) under the Securities Act, including with respect Act any prospectus required to be filed pursuant to such Rule.
(d) The Company will not make any offer relating to the timely filing of documents thereunder, and will use its best efforts Public Units or the securities contained therein that constitutes or would constitute a free writing prospectus or a portion thereof required to confirm that any filings made be filed by the Company with the Commission or retained by the Company under such Rule 424(b) are received in a timely manner by 433 of the CommissionSecurities Act.
3. The Company will cooperate (e) If the Time of Sale Prospectus is being used to solicit offers to buy the Public Units 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 it is 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 if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the Placement Agent and information contained in the Purchasers Registration Statement then on file, or if, in endeavoring to qualify the Securities opinion of counsel for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applicationsUnderwriters, 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 necessary to amend or required supplement the Time of Sale Prospectus to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptioncomply with applicable law, the Company shall use will prepare, file with the Commission and furnish, at its best efforts own expense, to obtain the withdrawal thereof at Underwriters and to any dealer upon request, either amendments or supplements to the earliest possible moment.
4. The Company Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the 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.
(f) If, during such period after the Securities Act and the Exchange Act, and the rules and regulations first date of the Commission thereunder, so as to permit the completion public offering of the distribution Public Units 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 as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Act) is required by law to be delivered in connection with the distribution of any Securities contemplated sales by the Incorporated Documents an Underwriter or any Prospectus (the “Prospectus Delivery Period”)dealer, any event shall occur or condition exist as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, which it becomes is necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beProspectus (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 if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any applicable law, the Company will promptly prepare and prepare, file with the CommissionCommission and furnish, and furnish at its own expense expense, to the Placement Agent Underwriters and to dealers, an appropriate amendment the dealers (whose names and addresses the Representatives will furnish to the Registration Statement Company) to which Units may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplement supplements to the Registration Statement, the Incorporated Documents or any Prospectus so that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplementedsupplemented will not, in the light of the circumstances under which they were madewhen the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, as the case may be, not misleading, be misleading or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with applicable law.
(g) The Company will endeavor to qualify the Public Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request.
(h) The Company will make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. Before amending All payments to be made by the Company hereunder shall be made 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.
(j) The Company will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, 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 with respect to, any other securities, Common Stock, Warrants or any securities convertible into, or exercisable, or exchangeable for, Common Stock or publicly announce an intention to effect any such transaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that such current or future independent director transferee is subject to the Insider Letter or executes an agreement substantially identical to the Insider Letter, as applicable to directors and officers, at the time of such transfer, and provided further that to the extent any Section 16 reporting obligation is triggered as a result of such transfer, any related Section 16 filing includes a practical explanation as to the nature of the transfer) and the Company may (1) issue and sell the Private Placement Warrants and the Working Capital Warrants, (2) issue and sell the Additional Units on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Statement or supplementing Rights Agreement, in accordance with the Incorporated Documents or any Prospectus terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Combination, including the PlacementForward Purchase Securities, or (y) release the Company will furnish Sponsor or any officer or director from the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which 180-day lock-up contained in the Placement Agent reasonably objectsInsider Letter.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or that has constituted or might reasonably be expected to constituteotherwise, the stabilization or manipulation of the price of any securities security of the Company to facilitate the sale or resale of the Public Units.
(l) The Company will use its reasonable best efforts to list, subject to notice of issuance, the Public Units, the Public Shares and the Public Warrants on the NYSE.
(m) The Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
(n) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
(o) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four (4) Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Current Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four (4) Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Additional Units and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(p) For a period commencing on the initial effective date of the Registration Statement and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Public Units, Public Shares and Public Warrants (or such other security into which the Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. During such period, the Company will not deregister the Public Units, Public Shares or Public Warrants under the Exchange Act (except in connection with an exchange of the Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(q) For a period commencing on the initial effective date of the Registration Statement and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Public Shares and Public Warrants cease to be publicly traded, 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, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(r) For a period commencing on the initial effective date of the Registration Statement and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Public Shares and Public Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(s) For a period commencing on the initial effective date of the Registration Statement and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives (i) copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website and publicly available will be considered furnished for the purposes of this Section 6(s).
(t) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company
Appears in 2 contracts
Sources: Underwriting Agreement (Northern Genesis Acquisition Corp. III), Underwriting Agreement (Northern Genesis Acquisition Corp. III)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials, or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities from any securities exchange upon which the Securities are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least three (3) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., Eastern Time, on the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) After the Closing of this Offering, the Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriters, which shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this Offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriters, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriters the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, for a period ending at 5:00 P.M., Eastern time, on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Underwriters, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials, and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its reasonable best efforts to effect and maintain the Placement Agent with listing of its ordinary shares on Nasdaq for at least three (3) years after the commencement of sales of this offering, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use its best efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 2 contracts
Sources: Underwriting Agreement (CTRL GROUP LTD), Underwriting Agreement (CTRL GROUP LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required to be filed under the Exchange Act within (ii) the time periods and in the manner required that confirmations are given or sent, as specified by the Exchange ActRule 462(b)(2).
6. (h) The Company will not takeuse its commercially reasonable efforts, directly in cooperation with the Representative, at or indirectlyprior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any action designed such jurisdiction, to cause or result inexecute a general consent to service of process in any such jurisdiction, or that has constituted or might reasonably be expected to constitutesubject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(i) During the six-month period following the date of this Agreement (the “Company Lock-up Period”), the stabilization or manipulation Company may not, without the prior written consent of the price Representative, (i) offer, sell, issue, agree or contract to sell or issue or grant any option for the sale of any securities of the Company, except for (A) the issuance of securities under any equity compensation plan of the Company, (B) the issuance of Ordinary Shares upon the exercise or conversion of securities that are issued and outstanding on the date of this Agreement and are described in the Registration Statement and the Prospectus, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits, adjustments or combinations as set forth in such securities) or to extend the term of such securities, and (C) the issuance of securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith within 180 days following the Closing Date, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; or (ii) file any registration statement relating to the offer or sale of any of the Company’s securities.
(j) Schedule II hereto contains a complete and accurate list of the Company’s executive officers, directors and holders of 5% or more of the Company’s Ordinary Shares (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(k) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver.
(l) The Company shall comply with the PRC Overseas Investment and Listing Regulations, and shall use commercially reasonable efforts to cause its securityholders that are Chinese residents or Chinese citizens, 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).
(m) Where there is any material information that shall be reported to the CSRC pursuant to the applicable laws (including, without limitation, the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies and supporting guidelines issued by the CSRC (effective from March 31, 2023), as amended, supplemented or otherwise modified from time to time (the “CSRC Filing Rules”) and the Provisions on Strengthening Confidentiality and Archives Administration of Overseas Securities Offering and Listing by Domestic Companies issued by the CSRC, Ministry of Finance of the PRC, National Administration of State Secrets Protection of the PRC, and National Archives Administration of the PRC, as amended, supplemented or otherwise modified from time to time (the “CSRC Archive Rules”), the Company shall promptly notify the CSRC or the relevant PRC governmental authority and provide it with such material information in accordance with the applicable laws, and promptly notify the Representative of such material information to the extent permitted by the applicable laws.
(n) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative. The Representative acknowledges that the Auditor is acceptable to the Representative.
(o) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such item which is available on the E▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(p) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. Eastern time on the first Business Day following the fortieth (40th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(q) The Company hereby grants the Representative the right of first refusal for a period of twelve (12) months after the closing of this Offering to act as the sole managing underwriter and book runner, or sole placement agent or sales agent, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings for which the Company retains the service of an underwriter, agent, advisor, finder or other person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary of the Company. The Company shall not offer to retain any entity or person in connection with any such offering on terms more favorable than terms on which it offers to retain the Representative. Such offer shall be made in writing in order to be effective. The Representative shall notify the Company within ten (10) business days of its receipt of the written offer contemplated above as to whether or not it agrees to accept such retention. If the Representative should decline such retention, the Company shall have no further obligations to the Representative with respect to the offering for which it has offered to retain the Representative, except as otherwise provided for herein.
(r) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus.
(s) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Ordinary Shares on the Nasdaq Stock Market, the NYSE,
Appears in 2 contracts
Sources: Underwriting Agreement (Eastern International Ltd.), Underwriting Agreement (Eastern International Ltd.)
Covenants of the Company. 1. (a) The Company has delivered or made available, or covenants with each Underwriter as follows:
(i) The Company will as promptly as practicable deliver or make available, use its reasonable best efforts to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, cause the Registration Statement, copies of if not effective at the documents incorporated by reference therein Representation Date, and any other materials permitted amendment thereto, to become effective, as promptly as possible after the filing thereof and agrees to prepare the Prospectus in a form approved by the Securities Act.
2Underwriters. The Company will not file any amendment to the Registration Statement or amendment or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall reasonably object in writing after a reasonable opportunity to review such amendment or supplement. Subject to the foregoing sentences in this clause 4(a)(i), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or supplement to the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, or such supplement thereto, to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed therein and will provide evidence satisfactory to the Underwriters of such timely filing upon their request. The Company will promptly advise the Placement Agent promptly after it receives notice thereof of Underwriters (A) when the time Registration Statement, if not effective at the Representation Date, and any amendment thereto, shall have become effective, (B) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (C) when any amendment to the Registration Statement has shall have been filed or becomes effective or become effective, (D) of receipt of any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with comments from the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission for any amendment of or supplement to amend the Registration Statement or to amend or supplement any Prospectus or for any additional information, and (iiE) of the receipt by the Company of any notification of, or if the Company otherwise has knowledge of, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any post-effective amendment thereto or any order directed at any Incorporated Documentproceeding for that purpose, if any, or any amendment or supplement thereto or any order preventing or suspending the use (F) of the Base Prospectus or receipt by the final Prospectus or Company of any prospectus supplement or any amendment or supplement thereto or any post-effective amendment notification with respect to the Registration Statement, of the suspension of the qualification of any of the Public Securities Shares for offering or sale in any jurisdiction, of jurisdiction or the institution initiation or threatened institution threatening of any proceeding for such purpose and (G) when, prior to termination of the Offering of the Shares, any such purpose, or of any request document shall have been filed by the Commission for Company under the amending Act or supplementing of the Registration Statement Exchange Act or a Prospectus or for additional informationunder the rules and regulations promulgated thereunder. The Company shall will use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If and, if issued, to obtain as soon as possible the Commission shall enter any such stop order or order or notice of prevention or suspension lifting thereof.
(ii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Act or the Act Regulations in connection with the Offering of the Shares, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the Act or the Act Regulations, the Company promptly will prepare and file with the Commission, at the Company's expense, an amendment or supplement which will correct such statement or omission or effect such compliance and will use its reasonable best efforts to cause the same to become effective as soon as possible; and, in case any Underwriter is required to deliver a prospectus after such time, the Company will use its best efforts to obtain upon request, but at the lifting expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of the Act and the Act Regulations. Neither your consent to, nor your delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7.
(iii) During such period when a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, will furnish to each Underwriter or mail to its order at copies of the earliest possible momentRegistration Statement, or will file a new registration statement the Prospectus, the Preliminary Prospectus and use its best efforts all amendments and supplements to have any such new registration statement declared effective documents in each case as soon as practicable. Additionallyavailable and in such quantities as such Underwriter may reasonably request, for the purposes contemplated by the Act.
(iv) The Company agrees that it shall comply consents to the use of the Prospectus in accordance with the provisions of Rules 424(b), 430A, 430B the Act and 430C, as applicable, under with the Securities Act, including with respect to securities or blue sky laws of the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made jurisdictions in which the Shares are offered by the Company under Underwriters and by all dealers to whom Shares may be sold, both in connection with the Offering and for such Rule 424(b) are received in a timely manner period of time thereafter as the Prospectus is required by the Commission.
3. The Company will cooperate Act to be delivered in connection with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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 sales by any Underwriter 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4dealer. The Company will comply with all requirements imposed upon it by the Securities Act as the same may be amended so far as necessary to permit the continuance of sales of or dealing in the Shares in accordance with the provisions hereof and the Prospectus.
(v) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters a consolidated earnings statement or statements of the Company and the Subsidiaries covering a twelve-month period beginning with the first full calendar quarter following the Effective Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder (it being understood that such delivery requirements shall be deemed met by the Company's compliance with the Company's reporting requirements pursuant to the Exchange Act and the Exchange ActRules and Regulations).
(vi) The Company will (A) on or before the Closing Date, and deliver to the rules and regulations Underwriters manually signed copies of the Commission thereunderRegistration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, so as promptly upon the filing thereof, manually signed copies of each post-effective amendment, if any, to permit the completion Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the distribution foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (B) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Securities Preliminary Prospectus and Prospectus as contemplated in this Agreement, the Incorporated Documents you may reasonably request and any Prospectus. If (C) thereafter from time to time during the period in which a prospectus is required by law to be delivered in connection with by an Underwriter or dealer, likewise send to the distribution Underwriters as many additional copies of the Prospectus and as many copies of any Securities contemplated supplement to the Prospectus and of any amended Prospectus, filed by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to as you may reasonably request for the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required purposes contemplated by the Exchange Act.
6. (vii) The Company will not takeapply the net proceeds from the Offering, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, and the stabilization or manipulation sale of the price Shares to be sold by the Company, in accordance with the description set forth in the "Use of any securities Proceeds" section of the CompanyProspectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Encore Capital Group Inc), Underwriting Agreement (Encore Capital Group Inc)
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies Each of the Registration Statement Company and the Operating Partnership covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with each Underwriter participating in the offering of each consent and certificate of expertsUnderwritten Securities, as applicablefollows:
(a) Immediately following the execution of the applicable Terms Agreement, filed 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 agreed to purchase, the names of the Underwriters acting as a part thereofco-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 conformed copies of the Registration Statement (without exhibits), the Base Prospectus, such other information as ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material deem appropriate in connection with the offering and sale of the Securities Underwritten Securities; and the Company will, by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement, transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the Placements other than 1933 Act Regulations and will furnish to the Transaction DocumentsUnderwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Base 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 the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus Supplementcomplying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, copies (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the documents incorporated by reference therein and Prospectus or any other materials permitted document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when Commission for any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of the Public Securities proceedings for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such that purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under the 1933 Act or prevention the 1934 Act in connection with sales of the Underwritten Securities, the Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice of its intention to file or suspension 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, (including any revised Prospectus which the Company proposes for use by the Underwriters in connection with an offering of Underwritten Securities which differs from the 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 pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations) and will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests.
(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 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 result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly prepare and file with the Commission such amendment or 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 to make the Registration Statement and Prospectus comply, in the opinion of Counsel to the Underwriters, with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such useamendment or supplement.
(g) The Company will endeavor, in 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 of the United States as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. If In each jurisdiction in which the Underwritten Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur.
(j) The Company will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under the caption "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 in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission shall enter 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.
(l) Neither the Company nor the Operating Partnership will, during a period of 90 days from the date of the applicable Terms Agreement, with respect to the Underwritten Securities covered thereby, without ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any of the Company's or the Operating Partnership's equity securities (other than the Underwritten Securities which are to be sold pursuant to such stop order Terms Agreement) or order any securities convertible into or notice exchangeable into or exercisable for equity securities of prevention either the Company or suspension at any timethe Operating Partnership, except in accordance with this Agreement, pursuant to a dividend reinvestment plan, pursuant to employee or director stock option plans, or as partial or full payment for properties to be acquired by the Operating Partnership.
(m) If applicable, the Company will use its best efforts to obtain list the lifting of Initial Underwritten Securities on the New York Stock Exchange or such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to national exchange on which the Placement Agent reasonably objectsCompany's Initial Underwritten Securities are then listed.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 2 contracts
Sources: Underwriting Agreement (Beacon Properties Corp), Underwriting Agreement (Beacon Properties L P)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required to be filed under the Exchange Act within (ii) the time periods and in the manner required that confirmations are given or sent, as specified by the Exchange ActRule 462(b)(2).
6. (h) The Company will not takeuse its commercially reasonable efforts, directly in cooperation with the Representative, at or indirectlyprior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any action designed such jurisdiction, to cause or result inexecute a general consent to service of process in any such jurisdiction, or that has constituted or might reasonably be expected to constitutesubject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(i) During the six-month period following the date of this Agreement (the “Company Lock-up Period”), the stabilization or manipulation Company may not, without the prior written consent of the price Representative, (i) offer, sell, issue, agree or contract to sell or issue or grant any option for the sale of any securities of the Company, except for (A) the issuance of securities under any equity compensation plan of the Company, (B) the issuance of Ordinary Shares upon the exercise or conversion of securities that are issued and outstanding on the date of this Agreement and are described in the Registration Statement and the Prospectus, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits, adjustments or combinations as set forth in such securities) or to extend the term of such securities, and (C) the issuance of securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith within 180 days following the Closing Date, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; or (ii) file any registration statement relating to the offer or sale of any of the Company’s securities.
(j) Schedule II hereto contains a complete and accurate list of the Company’s executive officers, directors and holders of 5% or more of the Company’s Ordinary Shares (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement
(k) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver.
Appears in 2 contracts
Sources: Underwriting Agreement (Simpple Ltd.), Underwriting Agreement (Simpple Ltd.)
Covenants of the Company. 1. The Company has delivered covenants with the Remarketing Agents as follows:
(a) The Company will provide prompt notice by telephone, confirmed in writing (which may include facsimile or made available, or will as promptly as practicable deliver or make availableother electronic transmission), to the Placement Agent complete conformed copies Remarketing Agents of (i) any notification or announcement by a “Nationally Recognized Statistical Rating Organization” (as defined in Section 3(a)(62) of the Registration Statement ▇▇▇▇ ▇▇▇) with regard to the ratings of any securities of the Company, including, without limitation, notification or announcement of a downgrade in or withdrawal of the rating of any security of the Company or notification or announcement of the placement of any rating of any securities of the Company under surveillance or review, including placement on CreditWatch or on Watch List with negative implications, or (ii) the occurrence at any time of any event set forth in Section 8(b)(ii), (iii)(A), (v) or (vi) of this Agreement.
(b) The Company, at its expense, will furnish to the Remarketing Agents:
(i) (A) if required as provided in paragraph (e) below for purposes of the remarketing, a then currently effective registration statement under the 1933 Act and a then current preliminary and/or final prospectus relating to the Debentures to be used by the Remarketing Agents for remarketing and resale of each consent the Debentures (such registration statement and certificate of expertsany amendments thereto, as applicable, filed as including any such preliminary and/or final prospectus relating to the Debentures constituting a part thereof, and conformed copies of all documents incorporated therein by reference and all documents otherwise deemed to be a part thereof or included therein by the Registration Statement (without exhibits)1933 Act Regulations, as from time to time amended or supplemented pursuant to the 1934 Act, the Base Prospectus1933 Act, or otherwise, are referred to herein as the “Registration Statement” and the Prospectus Supplement“Prospectus,” respectively, as amended except that if any revised preliminary or supplemented, in such quantities and at such places as final prospectus shall be provided to the Placement Agent reasonably requests. Neither Remarketing Agents by the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material for use in connection with the offering and sale remarketing of the Securities Debentures which differs from the Prospectus on file at the Commission, the term “Prospectus” shall refer to such revised preliminary or final prospectus from and after the time it is first provided to the Remarketing Agents for such use), (B) if so requested by the Remarketing Agents, a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Debentures being remarketed, in form and substance satisfactory to the Remarketing Agents, and (C) any other Issuer Free Writing Prospectus relating to the remarketing of the Debentures;
(ii) each 1934 Act Document filed after the date hereof;
(iii) in connection with the remarketing of Debentures, such other information as the Remarketing Agents may reasonably request from time to time; it being understood that, if a Prospectus is not prepared pursuant to the Placements other than the Transaction Documentsparagraph (e) below, the Base ProspectusRemarketing Agents may, in their discretion, deliver to purchasers and prospective purchasers, in connection with the remarketing, a preliminary and final remarketing memorandum or other form of written communication describing the Company and/or the terms of the Debentures (each, a “Remarketing Memorandum”), the Prospectus Supplement, form of each of which shall be delivered to the Registration Statement, copies Company not less than two Business Days prior to its use. Any such Remarketing Memorandum shall be subject to the approval of the documents incorporated by reference therein and any other materials permitted Company prior to its use by the Securities Act.Remarketing Agents; and
2. The Company will advise (iv) an officers’ certificate, a favorable opinion (including a statement as to the Placement Agent promptly after it receives notice thereof absence of material misstatements in or omissions from the then-current Remarketing Materials relating to the remarketing of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the Debentures) of ▇▇▇▇ ▇▇▇▇▇ system ▇▇▇▇▇, Esq., counsel for the Company and a “comfort letter” or letters from the Company’s independent accountants, in each case in form and substance satisfactory to the Remarketing Agents, of the SECsame tenor as the officers’ certificate, opinion and comfort letter, respectively, delivered pursuant to the Purchase Agreement, but modified to relate to the then-current Remarketing Materials relating to the remarketing of the Debentures, and in each case as of the date or dates and times specified by the Remarketing Agents in Annex I hereto. The Company agrees to provide the Remarketing Agents with as many copies of the foregoing written materials and other Company-approved information as the Remarketing Agents may reasonably request for use in connection with the remarketing of Debentures and consents to the use thereof for such purpose.
(c) If, at any time during which the Remarketing Agents would be obligated to take any action under this Agreement, any event or condition known to the Company relating to or affecting the Company, any subsidiary thereof or the Debentures shall occur which could reasonably be expected to cause any of the reports, documents, materials or information referred to in paragraph (b)(i), (ii) or (iii) above or any document incorporated therein by reference (collectively, the “Remarketing Materials”) to contain an untrue statement of a material fact or omit to state a material fact, or, in the case of any Issuer Free Writing Prospectus, if applicable, forming part of the Remarketing Materials, as a result of which such Issuer Free Writing Prospectus would conflict with the information otherwise contained in the Remarketing Materials, the Company shall promptly notify the Remarketing Agents in writing of the circumstances and details of such event or condition; and the Company, at its expense, shall promptly prepare and provide to the Remarketing Agents such report or other document as may be necessary to eliminate or correct such statement, omission or conflict, and, if required, will file promptly such report or other document with the Commission and will forward to the Remarketing Agents copies thereof a reasonable amount of time prior to the proposed filing.
(d) So long as the Debentures are outstanding and the Remarketing Agents would be obligated to take any action under this Agreement, the Company will file all reports and any definitive proxy or information statements documents required to be filed by the Company with the Commission pursuant to Section 13(a)the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations, 14 or 15(d) the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the Exchange Act subsequent remarketing of the Debentures as freely transferable securities, as contemplated in this Agreement and in the offering memorandum relating to the date initial issuance of the Debentures. In furtherance of the foregoing, if it shall be necessary, in the opinion of counsel for the Remarketing Agents or for the Company to use a Registration Statement and a Prospectus Supplement in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations and for so long as the delivery Commission’s interpretations of the 1933 Act and the 1933 Act Regulations, or if at any time when a prospectus Prospectus is required by the 1933 Act or the 1933 Act Regulations to be delivered in connection with remarketing and resales of the Placement. The Company will advise Debentures, any event shall occur or condition shall exist as a result of which it is necessary, in the Placement Agentopinion of counsel for the Remarketing Agents or for the Company, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement the Prospectus in order that the Prospectus will not include any Prospectus untrue statement of a material fact or for additional informationomit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company, at its expense, will promptly prepare and timely file with the Commission such Registration Statement (iiwhich Registration Statement shall not be the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the issuance by 1933 Act, and the Commission Company shall not be the subject of any stop order suspending a pending proceeding under Section 8A of the effectiveness 1933 Act in connection with the remarketing of the Debentures) and Prospectus, or such amendment or supplement as may be necessary to correct such statement or omission as referred to above or to make the Registration Statement or the Prospectus comply with such requirements as referred to above, prepare and timely file any post-effective amendment thereto Final Term Sheet as an Issuer Free Writing Prospectus or any order directed at any Incorporated Document, if any, or any such amendment or supplement thereto as may be necessary to correct such statement or omission as referred to above or any order preventing or suspending conflict with the use information contained in the Registration Statement and Prospectus, and, if applicable, timely pay any required Commission filing fees relating to the remarketing of the Base Debentures and update the “Calculation of Registration Fee” table in accordance with the 1933 Act Regulations.
(f) The Company shall provide to the Remarketing Agents and any other broker-dealer participating in the remarketing of the Debentures the opportunity to conduct an underwriter’s due diligence investigation of the Company in a scope customarily provided in connection with a public offering of the Company’s debt securities.
(g) To the extent that a Registration Statement and a Prospectus or are required as contemplated in paragraph (e) above and to the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment extent not otherwise already provided in this Agreement, the Company agrees to provide representations, warranties, covenants and indemnification of the same tenor as those set forth in the Underwriting Agreement, but modified to relate to the Registration Statement, Prospectus and any Issuer Free Writing Prospectus or other communications relating to the remarketing of the suspension Debentures and to comply with then applicable law and regulations, including, without limitation, the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations, applicable to a registered public offering of securities.
(h) The Company agrees that, unless it obtains the prior written consent of the qualification of any Remarketing Agents, and each Remarketing Agent, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Public Securities for offering Company, it has not made and will not make any offer relating to the Debentures that would constitute an Issuer Free Writing Prospectus or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by that would otherwise constitute a Free Writing Prospectus required to be filed with the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made retained by the Company under Rule 433 under the 1933 Act. Any such Rule 424(b) are received in a timely manner Free Writing Prospectus consented to by the Remarketing Agents or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
3. (i) The Company will cooperate with arrange for the Placement Agent and qualification of the Purchasers in endeavoring to qualify the Securities Debentures for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and Remarketing Agents may designate, will maintain such qualifications in effect so long as required to complete the Purchasers may reasonably request and will make such applicationsremarketing of the Debentures; provided, file such documentshowever, 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 to do business in any jurisdiction where it is not now so qualified or to file a take any action which would subject it to general consent to or unlimited service of process in any jurisdiction where it is not now so qualified subject or required subject itself to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading taxation in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if where it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as not now so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectssubject.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 2 contracts
Sources: Remarketing Agreement, Remarketing Agreement (Wells Fargo & Co/Mn)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company shall file the Prospectus Supplement(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and shall provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date, as amended in the opinion of counsel for the Representative, the Prospectus is no longer required by law to be delivered (or supplementedin lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in such quantities and at such places as connection with sales by an underwriter or dealer (the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute“Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably object within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post- effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any Prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeIssuer- Represented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will shall use its best all commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will shall use its best all commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (1) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, and the Registration Statement and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its best efforts counsel or the Underwriter or counsel to obtain the withdrawal thereof at Underwriter to amend the earliest possible moment.
4. The Company will Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company shall promptly notify the Underwriter and shall amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, or if it is necessary at any time to the Company shall promptly notify the Underwriter and shall promptly amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawsupplement, the Company will promptly prepare and file with the Commission, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company shall promptly deliver to the Placement Agent Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and shall maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company shall promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company shall furnish the Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, 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 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company shall use all commercially reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company shall make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) For a period of six (6) months from the effective date of the Registration Statement, the Incorporated Documents Company may not sell or issue, or agree to sell or issue, any equity security (which, for the purposes of this paragraph, shall include Ordinary Shares, preferred stock, or any Prospectus similar security, regardless of how classified for accounting purposes) or security convertible, exercisable or exchangeable for an equity security, except for (i) securities issued to the sellers of an operating business in bona fide transactions that is necessary in order to make the statements result in the Incorporated Documents and Company acquiring all or a portion of an operating business or other strategic transaction (including but not limited to any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus issuances made in connection with the Placementshare purchase agreement, dated January 18, 2018, by and among the Company, Shenzhen Crave Communication Co., Ltd. and Colmei Technology International Ltd.), provided that such transaction is not for the primary purpose of benefiting the affiliates of the Company or any of their respective affiliates or family members, and (ii) options to purchase Ordinary Shares issued to employees, directors and consultants of the Company (“Employee Options”). The maximum number of Employee Options that may be issued pursuant to (ii), above, is equal to 9% of the number Ordinary Shares outstanding immediately after the Closing ((i) and (ii), collectively, the “Exempt Issuances”).
(k) Except with respect to any Exempt Issuances, during the six (6) months following the Closing Date, without the consent of the Representative which shall not be unreasonably withheld, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will shall not file any such amendment registration statement relating to the offer or supplement to which sale of any of the Placement Agent reasonably objectsCompany’s securities, except Form S-8 filed with the Commission in connection with any Company stock incentive plan.
5. During (l) Following the Prospectus Delivery PeriodClosing Date, the Company will duly file, and any of the individuals listed on a timely basis, with the Commission Schedules B-1 and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 constituteB-2 hereto (collectively, the stabilization “Lock-Up Parties”) shall not sell or manipulation of the price otherwise dispose of any securities of the Company, whether publicly or in a private placement during the period that their respective lock-up agreements are in effect. The Company shall deliver to the Representative the agreements of Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex I-A with respect to the persons listed on Schedule B-I and Annex I-B with respect to the persons named on Schedule B-II.
(m) For a period of one (1) year from the effective date of the Registration Statement, the Company, at its expense, shall, at the Representative’s request, provide the Representative on a weekly basis with a copy of the Company’s weekly transfer sheets from the previous week and securities positions listings.
(n) If the Company fails to maintain the listing of its Ordinary Shares on a nationally recognized exchange, for a period of three (3) years from the effective date of the Registration Statement, the Company, at its expense, shall obtain and keep current a listing in the Standard & Poor’s Corporation Records Services or the ▇▇▇▇▇’▇ Industrial Manual; provided that ▇▇▇▇▇’▇ OTC Industrial Manual is not sufficient for these purposes.
(o) During the period of three (3) years from the effective date of the Registration Statement, the Company shall make available to the Underwriters copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and shall deliver to the Underwriters: (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(p) The Company shall not issue press releases or engage in any other publicity relating to the Offering, without the Representative’ prior written consent, for a period ending at 5:00 p.m. Eastern time on the first business day following the fortieth (40th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business.
(q) Prior to the consummation of the Offering, the Company shall engage or continue to engage (for no less than two (2) years from the date of the Closing Date) a financial public relations firm mutually acceptable to the Company and the Representative. The Company further agrees to consult with the Representative as is customary within the securities industry prior to distribution to third parties of any financial information, news releases, and/or other publicity regarding the Company, its business, or any terms of the proposed Offering, it being agreed that the Company shall give the Representative no less than twelve (12) hours prior notice of any such distribution and a reasonable opportunity during or prior to such period to review the contents of the proposed distribution.
(r) The Company has or shall retain Continental Stock Transfer & Trust Company (or a transfer agent reasonably acceptable to the Representative) as transfer agent for the Securities and shall continue to retain such transfer agent (or a transfer agent reasonably acceptable to the Representative) for a period of three (3) years following the Closing Date.
(s) The Company has or shall retain ▇▇▇▇▇ Agents, LLC (or a financial printer of similar competence and quality) as financial printer for the Offering and shall continue to retain such financial printer for a period of 45 days following the Closing Date.
(t) The Company has or shall retain the Auditors (or other independent PCAOB registered public accounting firm reasonably acceptable to the Representative) as independent public accountants for the Company and shall continue to retain independent PCAOB registered public accountants of comparable quality for a period of three (3) years following the Closing Date.
(u) The Company shall apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the written consent of the Representative, no proceeds of the Offering may be used to pay outstanding loans from officers, directors or shareholders or to pay any accrued salaries or bonuses to any employees or former employees.
(v) The Company will obtain, within 60 days from Closing, and will use its good faith best efforts to maintain its key person life insurance in the amount of $1,000,000 each on the lives of ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ with an insurer rated at least AA or better in the most recent edition of “Best’s Life Reports” in full force and effect for a period of three (3) years from the Closing Date.”
(w) The Company shall use all commercially reasonable efforts to effect and maintain the listing of the Securities on the NASDAQ Capital Market for at least three (3) years after the Closing Date.
(x) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, shall use all commercially reasonable efforts to file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(y) The Company shall use all commercially reasonable efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date, and to satisfy all conditions precedent to the delivery of th
Appears in 2 contracts
Sources: Underwriting Agreement (Borqs Technologies, Inc.), Underwriting Agreement (Borqs Technologies, Inc.)
Covenants of the Company. 1. The Company has delivered or made available, or will covenants with each Underwriter ------------------------ that:
(a) As soon as promptly as practicable deliver or make available, to possible after the Placement Agent complete conformed copies execution and delivery of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits)this Agreement, the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company Prospectus with the Commission pursuant to Section 13(a)Rule 424, 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agentsetting forth, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeamong other things, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including necessary information with respect to the timely filing terms of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution offering of the Securities. The Company will advise promptly deliver to the Placement Agent promptly 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 suspension Company, of the qualification Registration Statement, as originally filed, and of all amendments thereto, heretofore or registration 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 deliver to the Representative for distribution to the Underwriters as many conformed copies of the foregoing (or any such exemption relating toexcluding 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 thereafter from time to time as many copies of the Prospectus as the Representative may reasonably request for the purposes required by the Securities for offeringAct.
(b) During such period (not exceeding nine months) after the commencement of the offering of the Securities as the Underwriters may be required by law to deliver a Prospectus, sale if any event relating to or trading affecting the Company, or of which the Company shall be advised in any jurisdiction or any initiation or threat of any proceeding for any such purposewriting by the Representative shall occur, and which in the event Company's opinion should be set forth in a supplement to or an amendment of the issuance Prospectus in order to make the Prospectus not misleading in the light of any order suspending such qualificationthe circumstances when it is delivered to a purchaser, registration or exemptionif it is necessary to amend the Prospectus to comply with the Securities Act, the Company shall use will forthwith at its best efforts expense prepare and furnish to obtain the withdrawal thereof at Underwriters and dealers named by the earliest possible moment.
4. The Company Representative a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Prospectus which will supplement or amend the Prospectus so that as supplemented or amended it will comply with the Securities Act and the Exchange Act, and the rules and regulations will not contain any untrue statement of the Commission thereunder, so as a material fact or omit to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and state any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beProspectus 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 it is necessary at any time supplements or amendments to amend or supplement the Incorporated Documents or any Prospectus or to file under Prospectus, complying with Section 10(a) of the Exchange Act any Incorporated Document to comply with any law, the Securities Act.
(c) The Company will promptly prepare and file make generally available to its 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 (in form complying with the Commissionprovisions of Section 11(a) of the Securities 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 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 furnish at its own expense perform all things to be done and performed by it hereunder prior to the Placement Agent Closing Date and to dealers, an appropriate amendment satisfy all conditions precedent to the Registration Statement delivery by it of the Securities.
(e) The Company will advise the Representative promptly of the filing of the Prospectus pursuant to Rule 424 and of any amendment or supplement to the Prospectus or Registration Statement, the Incorporated Documents Statement or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleadingofficial notice of institution of proceedings for, or so that the Registration Statemententry of, a stop order suspending the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending effectiveness of the Registration Statement or supplementing and, if such a stop order should be entered, use its best efforts to obtain the Incorporated Documents or any Prospectus in connection with the Placement, the prompt removal thereof.
(f) The Company will furnish use its best efforts to qualify the Placement Agent with a copy Securities, as may be required, for offer and sale under the Blue Sky or legal investment laws of such proposed amendment or supplement jurisdictions as the Representative may designate, and will not file any and make in each year such amendment statements or supplement to which the Placement Agent reports as are or may be reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The laws of such jurisdictions; provided, however, that the Company will shall not take, directly be required to qualify as a foreign corporation or indirectly, any action designed to cause or result indealer in securities, or that has constituted or might reasonably be expected to constitute, file any general consents to service of process under the stabilization or manipulation of the price laws of any securities of the Companyjurisdiction.
Appears in 2 contracts
Sources: Underwriting Agreement (Cp&l Energy Inc), Underwriting Agreement (North Carolina Natural Gas Corp)
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies In connection with each offering of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits)Purchased Securities, the Base Prospectus, Company covenants and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection agrees with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.several Underwriters that:
2. (a) The Company will advise the Placement Agent Underwriters or the Representatives promptly after it receives notice thereof of any proposed amendment or supplementation of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus Statement, or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SECProspectus. The Company will file promptly all reports and any definitive proxy also advise the Underwriters or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) Representatives of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdictionpart thereof, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall and will use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts and to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionallypossible its lifting, the Company agrees that it shall comply with the provisions of Rules 424(b)if issued.
(b) If, 430A, 430B and 430C, as applicable, under the Securities Act, including with respect at any time when a prospectus relating to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Purchased Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with under the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)Act, any event shall occur occurs as a result of whichwhich the Prospectus as then amended or supplemented would include an untrue statement of a material fact, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents Registration Statement or any the Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Act, the Company promptly will promptly prepare and file with the CommissionCommission an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance.
(c) As soon as practicable, and furnish at its own expense but not later than 18 months, after the date of the Terms Agreement relating to the Placement Agent and Purchased Securities, the Company will make generally available to dealers, its security holders an appropriate amendment to earning statement or statements (which need not be audited) covering a period of at least 12 months beginning after the effective date of the Registration Statement or supplement (as defined in Rule 158(c) under the Act), which will satisfy the provisions of Section 11(a) of the Act and the rules and regulations thereunder.
(d) The Company will furnish to the Registration Statement, Underwriters or the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light Representatives such copies of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement (including one copy of the Registration Statement for each Representative, or supplementing for each Underwriter if there are no Representatives, and for the Incorporated Documents counsel for the Underwriters, which is signed and includes all exhibits), any related preliminary prospectus supplements and the Prospectus, including all amendments or supplements to such documents, as may be reasonably requested.
(e) The Company will arrange or cooperate in arrangements for the qualification of the Purchased Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Underwriters or the Representatives designate and will continue such qualifications in effect so long as required for the distribution of the Purchased Securities, provided that the Company shall not be required to qualify as a foreign corporation in any Prospectus State, to consent to service of process in connection any State other than with respect to claims arising out of the Placementoffering or sale of the Purchased Securities, or to meet other requirements deemed by it to be unduly burdensome.
(f) During the period of five years after the date of the Terms Agreement relating to the Purchased Securities, the Company will furnish to the Placement Agent with Underwriters or the Representatives thereunder, and, upon request, each of the other Underwriters, (i) as soon as practicable after the end of each fiscal year, a balance sheet and statements of income and retained earnings of the Company as at the end of and for such year, all in reasonable detail and certified by independent public accountants, and (ii) (A) as soon as practicable after the end of each quarterly fiscal period (except for the last quarterly fiscal period of each fiscal year), a balance sheet and statement of income of the Company as at the end of and for such period, all in reasonable detail and certified by a principal financial or accounting officer of the Company, (B) as soon as available, a copy of each report of the Company filed with the Commission, and (C) from time to time, such proposed amendment or supplement other information concerning the Company as may reasonably be requested. 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.
(g) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will not file reimburse the Underwriters for any such amendment or supplement reasonable expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with the qualification of the Purchased Securities with respect to which the Placement Agent reasonably objectsTerms Agreement relating to the Purchased Securities has been entered for sale, and the determination of their eligibility for investment, under the laws of such jurisdictions as the Representatives or, if there are no Representatives, the Underwriters designate, and the printing of memoranda relating thereto, and for any fees charged by investment rating agencies for the rating of the Purchased Securities.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (h) The Company will not take, directly offer or indirectly, sell any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, other of its Securities for a period beginning at the stabilization or manipulation time of execution of the price of any securities Terms Agreement relating to the Purchased Securities and ending on the Closing Date relating thereto without prior consent of the CompanyUnderwriter or the Representatives.
Appears in 2 contracts
Sources: Underwriting Agreement (Pinnacle West Capital Corp), Underwriting Agreement (Pinnacle West Capital Corp)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date, as amended in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (or supplementedin lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in such quantities and at such places as connection with sales by an underwriter or dealer (the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute“Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter reasonably object within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any Prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Shares from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, and any the Registration Statement and the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or counsel to the Underwriter to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Regenerx Biopharmaceuticals Inc), Underwriting Agreement (Regenerx Biopharmaceuticals Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SECtimely filing. The Company will file promptly with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel; provided, however, that the notwithstanding the foregoing, the Company will file all reports and any definitive proxy or information statements other documents required to be filed by the Company with the Commission pursuant to Section 13(a)13, 14 or 15(d) 15 of the Exchange Act subsequent within the time periods required by the Exchange Act and the regulations promulgated thereunder regardless as to whether the Company receives a response from the Representatives or Underwriters’ Counsel.
(c) After the date of this Agreement and through the Prospectus Supplement and for so long as Delivery Period, the delivery of a prospectus is required in connection with the Placement. The Company will shall promptly advise the Placement Agent, promptly after it receives notice thereof Representative in writing (i) of the receipt of any request by comments of, or requests for additional or supplemental information from, the Commission Commission, (ii) of the time and date of any filing of any post-effective amendment to amend the Registration Statement or to amend any amendment or supplement to any Prospectus prospectus, the General Disclosure Package or for additional informationthe Prospectus, (iii) of the time and date that any post-effective amendment to the Registration Statement becomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission for Common Shares or the amending Warrants from the Exchange, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (NLS Pharmaceutics Ltd.), Underwriting Agreement (NLS Pharmaceutics Ltd.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus if Rule 430A is used or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is otherwise required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeunder Rule 424(b), the Company will use its best efforts file the Prospectus (properly completed if Rule 430A has been used) pursuant to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely manner by the Commissionfiling.
3. The Company will cooperate with (b) During the Placement Agent period beginning on the date hereof and ending on the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution later of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification Closing Date or registration of (or any such exemption relating to) the Securities for offeringdate as, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event reasonable opinion of the issuance of any order suspending such qualification, registration or exemptionUnderwriter’s Counsel, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with the distribution of any Securities contemplated sales by the Incorporated Documents an underwriter or any Prospectus dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter and Underwriter’s Counsel for review a copy of each such proposed amendment or supplement, and the Company shall not file any event such proposed amendment or supplement to which the Underwriters reasonably objects within 36 hours of delivery thereof to Underwriter’s Counsel. The term “General Disclosure Package” means, collectively, (i) the Preliminary Prospectus, as amended or supplemented, (ii) the Issuer Free Writing Prospectus(es) (as defined below in Section 4(c)) issued at or prior to the date hereof, the most recent Preliminary Prospectus related to this Offering if any, identified in Schedule B hereto, (iii) the pricing information set forth in Schedule C to this Agreement, and (iv) any other free writing prospectus that the parties hereto shall occur hereafter expressly agree in writing to treat as a result of which, in the judgment part of the Company or in the opinion General Disclosure Package. As of the Placement Agent Applicable Time, the General Disclosure Package did not contain any untrue statement of a material fact or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, . The preceding sentence does not apply to statements in or if it is necessary at any time to amend or supplement omissions from the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare General Disclosure Package based upon and file in conformity with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsUnderwriters Information.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 2 contracts
Sources: Underwriting Agreement (FG Holdings LTD), Underwriting Agreement (FG Holdings LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriter that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriter of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriter’s Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter and Underwriter’s Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriter reasonably object.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriter in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Package, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities from any securities exchange upon which the Securities are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, the Disclosure Package, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriter or Underwriter’s Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Underwriter and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriter and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Underwriter and Underwriter’s Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith. The Company will promptly deliver to dealersthe Underwriter such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriter may reasonably request. Prior to 12:00 P.M., Eastern Time, on the next Business Day succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriter copies of the Prospectus in such quantities as the Underwriter may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriter in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Securities Act.
(h) The Company will use its best efforts, in cooperation with the Underwriter, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“E▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Regulations.
(j) During the six months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriter, which shall not be unreasonably withheld.
(k) Starting from the date of this Offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriter, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriter the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriter’s prior written consent, for a period ending at 5:00 p.m., Eastern Time, on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Underwriter, except as disclosed in the Registration Statement, the Incorporated Documents Disclosure Package, and the Prospectus, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or shareholders or to pay any accrued salaries or bonuses to any employees or former employees. The application of the net proceeds from the Offering will not, (i) contravene any provision of any current and applicable laws or the current constituent documents of the Company or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madeSubsidiaries, as (ii) contravene the case may be, not misleadingterms or provisions of, or so that constitute a default under, any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument currently binding upon the Registration Statement, the Incorporated Documents Company or any Prospectus, as so amended of the Subsidiaries or supplemented, will comply with law. Before amending (iii) contravene or violate the Registration Statement terms or supplementing provisions of any governmental authorization applicable to any of the Incorporated Documents Company or any Prospectus in connection with of the Placement, the Subsidiaries.
(n) The Company will furnish use its best efforts to effect and maintain the Placement Agent with listing of the Ordinary Shares on NYSE for at least three (3) years from the date of the Offering, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use its best efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriter, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriter in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriter, that may be transmitted electronically by the Underwriter to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to E▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriter, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 2 contracts
Sources: Underwriting Agreement (ChowChow Cloud International Holdings LTD), Underwriting Agreement (ChowChow Cloud International Holdings LTD)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 24 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreignd) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating toi) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly filecomply in all material respects with all requirements imposed upon it by the Securities Act, on as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such period any event occurs as a timely basisresult of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Commission and the Trading Market all reports and documents required Securities Act or to be filed file under the Exchange Act within the time periods and any document which would be deemed to be incorporated by reference in the manner required by Prospectus in order to comply with the Securities Act or the Exchange Act.
6. The , the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not take, directly or indirectly, any action designed yet available to cause or result in, or that has constituted or might reasonably be expected to constituteprospective purchasers, the stabilization General Disclosure Package) or manipulation of file such document (at the price of any securities expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Cheetah Net Supply Chain Service Inc.), Underwriting Agreement (Cheetah Net Supply Chain Service Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Star Equity Holdings, Inc.), Underwriting Agreement (Star Equity Holdings, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will covenants and agrees with the Underwriters that:
(a) Unless filed pursuant to Rule 462(c) as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies part of the Additional Registration Statement in accordance with the next sentence, the Company will file the Final Prospectus, in a form approved by the Representative, with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by the Representative, subparagraph (4)) of each consent Rule 424(b) not later than the earlier of (i) the second Business Day following the execution and certificate delivery of experts, as applicable, filed as a part thereof, and conformed copies this Agreement or (ii) the fifteenth Business Day after the Effective Time of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Initial Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent Representative promptly after it receives notice thereof of any such filing pursuant to Rule 424(b) and provide satisfactory evidence to the Representative of such timely filing. If an Additional Registration Statement is necessary to register a portion of the Securities under the Securities Act but the Effective Time thereof has not occurred as of the execution and delivery of this Agreement, the Company will file the Additional Registration Statement or, if filed, will file a post-effective amendment thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York City time, on the date of this Agreement or, if earlier, on or prior to the time when the Final Prospectus is finalized and distributed to any Underwriter, or will make such filing at such later date as shall have been consented to by the Representative.
(b) The Company will promptly advise the Representative of any proposal to amend or supplement at any time the Initial Registration Statement, any Additional Registration Statement or any Statutory Prospectus and will not effect such amendment or supplementation without the Representative’s consent; and the Company will also advise the Representative promptly of (i) the effectiveness of any Additional Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement), (ii) the time and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus any prospectus or the Prospectus Supplement has been filed Prospectus, (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery Registration Statement becomes effective, (iv) any amendment or supplementation of a prospectus is required in connection with the Placement. The Company will advise the Placement AgentRegistration Statement or any Statutory Prospectus, promptly after it receives notice thereof (iv) of any request by the Commission or its staff for any amendment to amend the any Registration Statement or Statement, for any supplement to amend or supplement any Statutory Prospectus or for any additional information (the Representative acknowledges such information may be considered material inside information), and (iivi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of the Base Prospectus any prospectus or the final Prospectus Prospectus, or of any prospectus supplement proceedings to remove, suspend or terminate from listing the Common Stock or Warrants from any amendment securities exchange upon which it is listed for trading, or supplement thereto of the threatening or initiation of any post-effective amendment proceedings for any of such purposes, and (vii) the receipt by the Company of any notification with respect to the Registration Statement, of the suspension of the qualification of any of the Public Offered Securities for offering or sale in any jurisdiction, of jurisdiction or the institution or threatened institution threatening of any proceeding proceedings for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its best efforts to prevent the issuance of any such stop order or prevention or the suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timequalification and, the Company will use its best efforts if issued, to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicablepossible the withdrawal thereof. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3(c) At any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act by any Underwriter or dealer, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Registration Statement, Disclosure Package and Final Prospectus. If during such period any event occurs as a result of which the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Disclosure Package) in order to comply with the Securities Laws, the Company will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representative, an amendment or supplement so that the statements in the Final Prospectus as so amended or supplemented will comply with applicable law and will not be misleading in the light of the circumstances under which they were made when the Final Prospectus is delivered to a prospective purchaser. Neither the Representative’s 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 6 hereof.
(d) As soon as practicable, the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(e) The Company will promptly deliver to the Representative and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will cooperate promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as the Representative may reasonably request. Prior to 10:00 a.m., New York time, on the Business Day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Placement Agent and Prospectus in New York City in such quantities as the Purchasers Representative may reasonably request in endeavoring writing. Representative will make such request sufficiently in advance of such time to qualify give the Company time to comply.
(f) The Company will arrange for the qualification of the Offered Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request Representative designates and will make continue such applications, file such documents, and furnish such information qualifications in effect so long as may be reasonably required for that purposethe distribution.
(g) For the period specified below (the “Lock-Up Period”), provided the Company shall not be required will not, directly or indirectly, take any of the following actions with respect to qualify as its shares of Common Stock, or any securities convertible into or exchangeable or exercisable for any of its Common Stock (“Lock-Up Securities”): (i) offer, sell, pledge, contract to sell or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) establish or increase a foreign corporation put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities, other than (A) registration statements on Form S-8 relating to the issuance, vesting, exercise or settlement of equity awards granted or to file a general consent be granted pursuant to service any employee benefit plan or employment agreement described in the Final Prospectus or (B) registration statement(s) relating to any underwritten public offering of process in any jurisdiction where it is not now so qualified equity securities of the Company by the Company or required to file such a consent(C) registration statement(s) on Form S-4; provided, and provided further however, that the Company shall not be required permitted during the Lock-Up Period to produce any new disclosure document. The Company will(1) sell the Offered Securities to be sold hereunder, (2) issue shares of Common Stock or the grant of options to purchase shares of Common Stock or restricted share units or other securities under the Company’s share incentive plans, as such plans may be amended from time to time, prepare and file including any increases to shares issuable under such statements, reports and other documents as are or may be required plans pursuant to continue “evergreen” provisions in such qualifications in effect for so long plans after a period as of six (6) months from the Placement Agent may reasonably request Effective Date, (3) issue securities upon the exercise of an option or a warrant, the vesting of a restricted share unit or the conversion of a security, (4) issue any securities by the Company in connection with the Company’s acquisition of one or more businesses, products or technologies, joint ventures, commercial relationships or other strategic corporate transactions, (5) issue and sell equity securities in an underwritten public offering pursuant to the registration statement(s) described in clause (iv)(B) of this paragraph, provided that the purchase or underwriting agreement for distribution any such issuance is executed no earlier than 150 days after the date of the SecuritiesFinal Prospectus, (6) shares of Common Stock and warrants to purchase shares of Common Stock the Company is obliged to issue on a contractual basis based on contracts executed on or prior to the date of the Final Prospectus as described in the Final Prospectus and additional warrants as compensation to the Company’s contract sales organization, and (7) during the period from three (3) months from the Effective Date until six (6) months from the Effective Date, issue and sell equity securities by the Company pursuant to the At-the-Market Issuance Sales Agreement between the Company and MLV & Co. LLC dated April 2, 2014 at prices greater than the Purchase Price. The initial Lock-Up Period will commence on the date hereof and continue for 180 days after the date of the Final Prospectus or such earlier date that Maxim Group LLC acting on behalf of the Underwriters consents to in writing; provided, however, that if (x) during the last 17 days of the initial Lock-Up Period the Company releases earnings results or announces material news or a material event, or (y) 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 the Representative waives, in writing, such extension. The Company will advise shall provide the Placement Agent promptly Representative and each shareholder subject to the Lock-Up Period pursuant to the lock-up letters described in Section 6(h) with prior notice of any such announcement that gives rise to an extension of the suspension of the qualification or registration of initial Lock-up Period.
(or any such exemption relating toh) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the The Company shall will use its best efforts to obtain maintain the withdrawal thereof at listing of the earliest possible momentOffered Securities on the Trading Market.
4. The Company will comply with (i) If, during such period after the Securities Act and the Exchange Act, and the rules and regulations first date of the Commission thereunder, so as to permit the completion public offering of the distribution Offered Securities as in the opinion of counsel for the Underwriters the Final Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus Act) is required by law to be delivered in connection with the distribution of any Securities contemplated sales by the Incorporated Documents an Underwriter or any Prospectus dealer (the “Prospectus Delivery Period”), any event shall occur or condition exist as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, which it becomes is necessary to amend or supplement the Incorporated Documents or any Final Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beFinal 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 if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend or supplement the Incorporated Documents or any Final Prospectus or to file under the Exchange Act any Incorporated Document to comply with any applicable law, the Company will promptly prepare and forthwith to prepare, file with the CommissionCommission and furnish, and furnish at its own expense expense, to the Placement Agent Underwriters and to dealers, an appropriate amendment the dealers (whose names and addresses the Representative will furnish to the Registration Statement Company) to which Offered Securities may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon reasonable request, either amendments or supplement supplements to the Registration Statement, the Incorporated Documents or any Final Prospectus so that is necessary in order to make the statements in the Incorporated Documents and any Final Prospectus as so amended or supplementedsupplemented will not, in the light of the circumstances under which they were madewhen the Final Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, as the case may be, not misleading, be misleading or so that the Registration Statement, the Incorporated Documents or any Final Prospectus, as so amended or supplemented, will comply with applicable law. Before amending the Registration Statement or supplementing the Incorporated Documents or .
(j) Upon reasonable request of any Prospectus Underwriter in connection with the Placementwriting, the Company will furnish furnish, or cause to be furnished, to such Underwriter an electronic version of the Placement Agent with a copy Company’s patents, trademarks, service marks and corporate logo for use on the website, if any, operated by such Underwriter solely for the purpose of such proposed amendment or supplement and will not file any such amendment or supplement to which facilitating the Placement Agent reasonably objectsoffering of the Offered Securities.
5. During (k) The Company agrees (A) to apply the Prospectus Delivery Periodnet proceeds to the Company from the sale of the Offered Securities in the manner set forth under the heading “Use of Proceeds” in the Registration Statement, the Company will duly file, on a timely basis, Disclosure Package and the Final Prospectus and to file such reports with the Commission with respect to the sale of the Offered Securities and the Trading Market all reports and documents application of the proceeds therefrom as may be required to be filed by Rule 463 under the Exchange Act within Securities Act; (B) not to use the time periods and proceeds to pay principal on outstanding loans from officers, directors or stockholders other than as described in the manner required Prospectus, (C) not to invest, or otherwise use the proceeds received by the Exchange Company from its sale of the Offered Securities in such a manner as would require the Company to register as an investment company under the Investment Company Act.
6. The Company will ; and (D) not taketo, directly or indirectly, any action designed to cause or result inuse the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person in any manner that has constituted will result in a violation of Sanctions (defined below) by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or might reasonably be expected to constituteotherwise). Except as disclosed in the Registration Statement, the stabilization Disclosure Package and the Final Prospectus, the Company does not have any material lending or manipulation of the price other relationship with any bank or lending affiliate of any securities Underwriter. For purposes of clarity, the Company has an ongoing relationship with MLV & Co. LLC and the Company agreed to pay compensation to ▇▇▇▇▇▇ ▇▇▇▇▇ in the event the Company sells the shares of Ruthigen that it currently holds.
(l) The Company will comply with and will require the Company’s directors and executive officers, in their capacities as such, to comply with all applicable Securities Laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(m) With the prior written consent of the Company., the Representative acting on behalf of the Underwriters may release or waive the restrictions set forth in a lock-up letter described in Section 6(h) for any party thereunder. If the Representative, with prior written consent of the Com
Appears in 2 contracts
Sources: Underwriting Agreement (Oculus Innovative Sciences, Inc.), Underwriting Agreement (Oculus Innovative Sciences, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date, as amended in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (or supplementedin lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in such quantities and at such places as connection with sales by an underwriter or dealer (the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute“Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter reasonably object within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any Prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the Commission.
3Commission (without reliance on Rule 424(b)(8) or Rule 164(b)). The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, and any the Registration Statement and the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or counsel to the Underwriter to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Jintai Mining Group, Inc.), Underwriting Agreement (Golden Green Enterprises Ltd.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities from any securities exchange upon which the Securities are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, the Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. On the Business Day next succeeding the date of this Agreement, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish to the Placement Agent with a copy Underwriters copies of the Prospectus in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the Trading Market all reports time that confirmations are given or sent, as specified by Rule 462(b)(2), and documents pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the Offering or sale of the Securities of such jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the time periods Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the manner required by the Exchange Act.
6. 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 end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
Appears in 2 contracts
Sources: Underwriting Agreement (Pinnacle Food Group LTD), Underwriting Agreement (Pinnacle Food Group LTD)
Covenants of the Company. 1. The Company has delivered or made available(a) For a period of two (2) years after the effective date of this Agreement, or will as promptly as practicable deliver or make availablewithout the consent of Employee, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits)which shall not be unreasonably withheld, the Base ProspectusCompany agrees that, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery Company is receiving orders for dedicated positron emission tomography scanners at the rate of seventeen (17) systems per annum, eleven (11) of the engineers and physicists employed at the Company's Philadelphia, Pennsylvania location may work full-time on dedicated positron emission tomography scanner design and development with respect to the Company's existing products, products under development and next generation products such as a combined PET and other modality scanner. Such work includes typical engineering, manufacturing engineering and regulatory activities.
(b) For a period of two (2) years after the effective date of this Agreement, the Company agrees that, in the event of a prospectus is required vacancy in the position of general manager of ADAC--UGM, Employee shall have the right to participate in the selection of a new general manager, and in the event Employee reasonably disagrees with the Company's recommendation, the Company and Employee shall use reasonable efforts to identify an alternate candidate.
(c) For a period of two (2) years after the effective date of this Agreement, without the consent of Employee, which shall not be unreasonably withheld, the Company agrees not to terminate any of the original employees of Seller who become employees of the Company upon the closing under the Agreement of Merger, except for cause or in connection with a reduction in force.
(d) For a period of three (3) years after the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) effective date of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Documentthis Agreement or, if anysooner, or any amendment or supplement thereto or any order preventing or suspending until such time as the use Philadelphia, Pennsylvania location is producing systems at a rate of forty (40) systems per annum, without the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statementconsent of Employee, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company which shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionallynot be unreasonably withheld, the Company agrees that it the placement of purchase orders, engineering and manufacturing for the Philadelphia, Pennsylvania location shall comply with continue to be conducted at the provisions Philadelphia, Pennsylvania location, except that aspects of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made such functions can be centralized by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided at another location if the Company shall not be required to qualify demonstrates costs savings, quality or other advantages of doing so (such 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of manufacturing certain sub-assemblies (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionE.G., the Company shall use its best efforts to obtain patient table) in Milpitas, California or centralizing the withdrawal thereof at the earliest possible momentpurchase of certain significant cost items (E.G., crystals) in Milpitas, California).
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 1 contract
Sources: Merger Agreement (Adac Laboratories)
Covenants of the Company. 1. (A) The Company has delivered or made available, or will covenants and agrees as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement follows:
(without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(da) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to prevent Rule 424(b) under the issuance Securities Act not later than the Commission's close of any such stop order or prevention or suspension business on the second business day following the execution and delivery of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timethis Agreement, the Company will use its best efforts to obtain the lifting of such order at the earliest possible momentor, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, including with respect and shall promptly advise the
(b) If, at any time when a prospectus relating to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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 Shares is 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with delivered under the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)Rules, any event shall occur occurs as a result of which, in which the judgment Prospectus as then amended or supplemented would include any untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, therein in the light of the circumstances under which they were made, as the case may be, made not misleading, or if it is shall be necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act or the Rules, the Company will promptly shall prepare and file with the Commission, and furnish at its own expense subject to the Placement Agent second sentence of paragraph (a) of this Section 6(A), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security holders and to dealersthe Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an appropriate amendment earning statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement or supplement (including all exhibits thereto and amendments thereof) and to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light each other Underwriter a copy of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or supplementing dealer may be required by the Incorporated Documents Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus in connection and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(e) The Company shall cooperate with the PlacementRepresentatives and their counsel in endeavoring to qualify the Shares for offer and sale under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company
(f) For a period of five years after the date of this Agreement, the Company will shall supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and to furnish to the Placement Agent with Representatives a copy of such proposed amendment each annual or supplement and will not other report it shall be required to file any such amendment or supplement to which with the Placement Agent reasonably objectsCommission.
5. During (g) Without the Prospectus Delivery Periodprior written consent of CIBC Oppe▇▇▇▇▇▇▇, ▇▇r a period of 180 days after the date of this Agreement, the Company will duly fileshall not issue, on a timely basis, sell or register with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not take(other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation equity securities of the price of Company (or any securities convertible into or exercisable or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option and purchase plans. In the event that during this period, (i) any shares are issued pursuant to the Company's existing stock and option purchase plans or (ii) any registration is effected on Form S-8 or on any successor form, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this Agreement, such person will not, without the prior written consent of the Representatives, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(h) Notwithstanding any agreement between any holder of the Company's securities and the Company, the Company agrees that it will not allow any holder of the Company's securities to transfer such securities during the Lock Up Period without CIBC Oppe▇▇▇▇▇▇▇'▇ ▇▇▇or written consent. For the purposes of this Agreement, the "Lock Up Period" shall be as defined in the Lock Up Agreement between CIBC Oppe▇▇▇▇▇▇▇ ▇▇▇ certain holders of the Company's securities dated October 4, 1998.
(i) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq National Market (including any required registration under the Exchange Act).
(B) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Company under this Agreement and all costs and expenses relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus, and the printing, filing and distribution of this Agreement; (ii) the preparation -15- 16 and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 6(A)(e), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of the National Association of Securities Dealers, Inc. in connection with its review of the terms of the public offering; (vi) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of all reports and information required by Section 6(A)(f); (vii) inclusion of the Shares for quotation on the Nasdaq National Market; and (viii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters. Subject to the provisions of Section 9, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Abovenet Communications Inc)
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 after the date of the Prospectus Supplement and for so long as within the delivery of a prospectus is required in connection with the PlacementProspectus Delivery Period. The Company will advise pay the Placement Agentregistration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, promptly after it receives notice thereof in any event, prior to the Closing Date.
(ib) of any request by If the Commission Representatives so request, the Company, on or prior to amend the Registration Statement or Closing Date, will deliver to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness Representatives conformed copies of the Registration Statement or as originally filed, including all exhibits, any post-effective amendment thereto or Preliminary Prospectus, the Final Term Sheet, any order directed at any Incorporated DocumentIssuer Free Writing Prospectus, if anythe Prospectus and all amendments and supplements to each such document, or any amendment or supplement thereto or any order preventing or suspending in each case as soon as available and in such quantities as are reasonably requested by the use Representatives. The Representatives will be deemed to have made such a request for copies for each of the Base Prospectus or several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the final Prospectus or Underwriters, with respect to any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to such documents that are not electronically available through the Commission’s ▇▇▇▇▇ filing system.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of the suspension Senior Notes, (iii) any fees and expenses of the qualification of any of Trustee and (iv) the Public Securities for offering or sale printing and delivery (by first class mail) to the Underwriters, in any jurisdictionreasonable quantities, of the institution or threatened institution copies of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration StatementPreliminary Prospectus, the Incorporated Documents or Final Term Sheet, any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Issuer Free Writing Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission (each as originally filed and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.as subsequently
Appears in 1 contract
Sources: Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made available, or covenants and agrees with each of the Underwriters that:
(a) The Company will as promptly as practicable deliver or make available, every reasonable effort to the Placement Agent complete conformed copies of cause the Registration Statement to become effective and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of will advise you when it is effective under the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when not file any amendment to the Registration Statement has been filed Statement, or becomes effective or any supplement to the Base Prospectus Prospectus, of which you have not been previously advised and furnished with a copy, or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(dwhich you have reasonably objected in writing.
(b) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, you promptly after it receives notice thereof (i) of any request by of the Commission to amend for amendment of the Registration Statement or to amend or supplement any Prospectus or for additional information, information and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding proceedings for any such purposethat purpose of which it has knowledge, or of any request by and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will comply, to the best of its ability, with the Act so as to permit the continuance of sales of and dealings in the Stock under the Act for such period as may be required by the Act; whenever it is necessary to amend or prevention supplement the Prospectus to make the statements therein not misleading, furnish, without charge to you as the Representatives, either amendments to the Prospectus or suspension supplemental information, so that the statements in the Prospectus as so amended or supplemented will not be misleading; and file a post-effective amendment to the Registration Statement whenever such an amendment may be required and furnish, without charge to you, a reasonable number of such use. If the Commission shall enter copies of any such stop order or order or notice amendment and related Prospectus.
(d) Not later than the 45th day following the end of prevention or suspension at any timethe fiscal quarter first occurring after the first anniversary of the date of the Prospectus, the Company will use make generally available to its best efforts security holders and deliver to obtain you an earnings statement (which need not be audited) covering a period of at least 12 months beginning not earlier than the lifting Effective Date which shall satisfy the provisions of Section 11(a) of the Act and/or Rule 158 promulgated under the Act.
(e) The Company will furnish to you copies of the Registration Statement (two of which will be signed and will include all exhibits thereto), each preliminary prospectus, the Prospectus, all amendments of and supplements to such order at documents, and all correspondence between the earliest possible momentCommission and the Company or its counsel or accountants relating thereto, or will file a new registration statement and use its best efforts to have such new registration statement declared effective in each case as soon as practicable. Additionallyavailable and in such quantities as you may reasonably request.
(f) If any shares of Option Stock are purchased hereunder, the Company agrees that that, for a period of three years from the date of the Prospectus, it will deliver to you (i) within 90 days after the end of each fiscal year, consolidated balance sheets, statements of income, statements of cash flow and statements of changes in stockholders' equity of the Company and its consolidated subsidiaries, if any, as at the end of and for such year and the last preceding year, all in reasonable detail and certified by independent accountants, (ii) within 45 days after the end of each of the first three quarterly periods in each fiscal year, unaudited consolidated balance sheets and statements of income, statements of cash flow and statements of changes in stockholders' equity of the Company and its consolidated subsidiaries, if any, as at the end of and for such period, all in reasonable detail, (iii) as soon as available, all such proxy statements, financial statements and reports as the Company shall comply send or make available to its stockholders, and (iv) copies of all annual or periodic reports as the Company or any subsidiary shall file with the provisions of Rules 424(b), 430A, 430B and 430C, Commission as applicable, under required by the Securities Act, including the Exchange Act and any rules or regulations thereunder, which are available for public inspection at the Commission, or any material reports filed in connection with respect to the timely filing Company's listing on any stock exchange.
(g) The Company will apply the net proceeds from the sale of documents thereunderthe Option Stock sold by it, if any, in the manner set forth in the Prospectus, and will use its best efforts to confirm comply with any reporting obligations as may be required by Rule 463 under the Act.
(h) If, at the time that the Registration Statement becomes effective, any filings made by information shall have been omitted therefrom in reliance upon Rule 430A promulgated under the Act, then not later than the Commission's close of business on the second business day following the execution of this Agreement, the Company under such will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) are received in promulgated under the Act, copies of an amended Prospectus or, if required by such Rule 430A, a timely manner by the Commissionpost-effective amendment (including an amended Prospectus), containing all information so omitted.
3. (i) The Company will file with the NASD all documents and notices required of companies that have issued securities that are traded on Nasdaq.
(j) The Company will cooperate with the Placement Agent you and the Purchasers in endeavoring your counsel to qualify the Securities Stock for sale under the securities or Blue Sky laws of such jurisdictions (within the United States and foreign) as the Placement Agent and the Purchasers may you reasonably request and will make such applicationsdesignate, file such documents, and furnish including furnishing such information and executing such instruments as may be reasonably required required, and will continue such qualifications in effect for that purposea period of at least three months from the date hereof; provided, provided however, the Company shall not be required to register or qualify as a foreign corporation or as a dealer in securities nor, except as to file a general matters and transactions relating to the offer and sale of the Stock, consent to a service of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce jurisdiction.
(k) If any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and other documents as shares of Option Stock are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionpurchased hereunder, the Company shall use its best efforts to obtain agrees that, for a period of 90 days from the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations date of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file not publicly sell, except with the Commissionyour prior written consent, and furnish at its own expense any shares of Common Stock or securities convertible into shares of Common Stock for cash, except pursuant to the Placement Agent and to dealers, an appropriate amendment to exercise of any outstanding stock options of the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus Company that is necessary in order to make the statements are described in the Incorporated Documents and any Prospectus as so amended or supplemented, in Prospectus.
(l) After the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the PlacementClosing Dates, the Company and the Subsidiaries will furnish be in compliance with the Placement Agent with a copy financial record-keeping requirements and internal accounting control requirements of such proposed amendment or supplement and will not file any such amendment or supplement to which Section 13(b)(2) of the Placement Agent reasonably objectsExchange Act.
5. During (m) The Company, during the period when the Prospectus Delivery Periodis required to be delivered under the Act, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act within the time periods and in the manner required by the Exchange ActAct and the Exchange Act Regulations.
6. 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.
Appears in 1 contract
Sources: Underwriting Agreement (Nn Inc)
Covenants of the Company. 1. The Company has delivered or made available, or will covenants and agrees with each Underwriter as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement follows:
(without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. a) The Company will advise notify the Placement Agent Representatives promptly after it receives notice thereof (i) of the time when the Registration Statement or any post-effective amendment to the Registration Statement has been filed or becomes effective or become effective; (ii) any supplement to the Base Prospectus or the Sale Preliminary Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(dfiled; (iii) of the Exchange Act subsequent to receipt of any comments from the date of the Prospectus Supplement Commission; and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (iiv) of any request by the Commission for any amendment or supplement to amend the Registration Statement Statement, Prospectus or the Sale Preliminary Prospectus or additional information. If required by Rule 430A, Rule 430B and Rule 430C of the Rules and Regulations, the Company will prepare and file a Prospectus containing the information required by Rule 430A, Rule 430B and Rule 430C with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A, Rule 430B and Rule 430C, if applicable. If the Company has elected to rely upon Rule 462 of the Rules and Regulations, the Company will prepare and file a registration statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462. The Company will not file any amendment or supplement to the Registration Statement, Disclosure Package, Prospectus or the Sale Preliminary Prospectus which is not in compliance with Sections 424(b), 430A, Rule 430B and Rule 430C or 433 of the Act or to amend which the Representatives shall reasonably object by notice to the Company after having been furnished a copy thereof a reasonable time prior to the filing.
(b) The Company will advise the Representatives, promptly after the Company receives notice or supplement any Prospectus or for additional informationobtains knowledge thereof, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities Common Shares for offering or sale in any jurisdictionjurisdiction or quoted for trading on the Nasdaq Global Select Market, or of the institution or threatened institution initiation or, to the Company’s knowledge, threatening of any proceeding for any such purpose, or of any request by ; and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its best efforts to prevent the issuance of any such stop order or prevention suspension or suspension of to obtain its withdrawal if such use. If the Commission shall enter any such a stop order or order suspension should be issued.
(c) During the period beginning on the Initial Sale Time and ending on the later of the Closing Date or notice such date, as in the opinion of prevention or suspension at any timethe Underwriters, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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 Prospectus is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is no longer required by law to be delivered in connection with the distribution of any Securities contemplated sales by the Incorporated Documents Underwriters or any Prospectus a dealer (the “Prospectus Delivery Distribution Period”), the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in effect, so far as necessary to permit the sale and distribution of the Common Shares by the Underwriters as contemplated by the provisions hereof and the Prospectus. If, during the Distribution Period the Sale Preliminary Prospectus is being used to solicit offers to purchase Common Shares at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, which it becomes is necessary to amend or supplement the Incorporated Documents or any Sale Preliminary Prospectus in writing in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Sale Preliminary Prospectus to comply with applicable law, the Company shall promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Sale Preliminary Prospectus so that the statements in the Sale Preliminary Prospectus as so amended or supplemented will not, in the case may belight of the circumstances when the Sale Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Sale Preliminary Prospectus, as amended or supplemented, will comply with applicable law. If during the Distribution Period any event occurs, or fails to occur, as a result of which, in the judgment of the Company or in the opinion of the Underwriters, (i) the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if (ii) it is becomes necessary at any time to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Act, then the Company will promptly notify the Representatives and will prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealerseach Underwriter, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, Prospectus so that the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplementedsupplemented will not, in the light of the circumstances under which they were madewhen it is so delivered, as the case may be, not be misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, Prospectus will comply with lawthe Act.
(d) The Company shall cooperate with the Underwriters and their counsel in endeavoring to qualify the Common Shares for offering and sale under (or obtain exemptions from the application of) the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may reasonably designate; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to service of general process, to qualification to do business as a foreign entity, to registration as a securities dealer or to taxation as a foreign corporation. Before amending In each jurisdiction in which the Common Shares have been so qualified, the Company will file such statements and reports as may be required to be filed by it by the laws of such jurisdiction to continue such qualification in effect so long as required for the distribution of such securities.
(e) During the Distribution Period, the Company shall furnish to the Representatives copies of (i) the Registration Statement or supplementing as originally filed (including all exhibits filed therewith), each amendment thereto (without exhibits) and (ii) each of the Incorporated Documents or any Preliminary Prospectuses, the Prospectus and all amendments and supplements thereto, in connection each case as soon as available and, with respect to the documents in clause (ii), in such quantities as the Representatives may from time to time reasonably request.
(f) For a period of two years commencing with the Placementdate hereof, the Company will furnish to the Placement Agent with a copy Representatives copies of such proposed amendment or supplement all documents, reports and will not file any such amendment or supplement other information furnished by the Company to which the Placement Agent reasonably objectsholders of its Common Stock generally except, in each case, if available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
5. During (g) The Company shall make generally available to holders of the Common Stock as soon as practicable, but in any event not later than 18 months after the “effective date of the Registration Statement” (as defined in Rule 158(c)) of the Rules and Regulations), an earnings statement (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(h) The Company will use the net proceeds received by it from the sale of the Common Shares in the manner specified in the Prospectus Delivery Periodunder “Use of Proceeds.”
(i) The Company shall not take, directly or indirectly, prior to the termination of the offering contemplated by this Agreement, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(j) For so long as the shares of Common Stock sold in the offering contemplated by this Agreement are listed on the Nasdaq Global Select Market or a comparable securities exchange or market, the Company will duly shall engage and maintain a registrar and transfer agent for the Common Stock.
(k) The Company shall file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within during the time periods and in the manner required by the Exchange ActDistribution Period.
6(l) For a period of 90 days after the date of the Prospectus (the “Lock-Up Period”) neither the Company nor any of its executive officers or directors shall, without the prior written consent of ▇.▇. The Company will not take▇▇▇▇▇▇▇▇ & Co., on behalf of the Underwriters, (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any action designed Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to cause purchase Common Stock or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any other securities of the Company that are substantially similar to Common Stock, or enter into a transaction that would have the same effect; or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise; (2) publicly disclose the intention to make any such offer, sale, hypothecation, pledge, grant or disposition, or to enter into any such transaction, swap, hedge or other arrangement; or (3) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of 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; provided, however, that the foregoing restrictions do not apply to (i) the registration of the Common Shares and the sales thereof to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Prospectus and the Incorporated Documents, (iii) the grant of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans and described in the Incorporated Documents, and (iv) transfers of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock by any of the persons subject to a lock-up agreement (a) as a bona fide gift or gifts, (b) by will or intestacy or (c) to any member of such person’s immediate family or a trust created for the direct or indirect benefit of such person or the immediate family thereof, provided that, in any such case, the transferee or transferees shall execute and deliver to the Underwriters, before such transfer, an agreement to be bound by the restrictions on transfer described above; provided, further, that, if (x) within 17 days of the expiration of the Lock-Up Period, the Company issues an earnings release or discloses material news, or a material event relating to the Company occurs, or (y) before the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then in any such case the restrictions imposed by this Section 4(A)(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, the disclosure of the material news or the occurrence of the material event; provided, moreover, that the foregoing clause shall not apply if the Company delivers to the Underwriters, not sooner than 18 nor later than 16 days before the last day of the Lock-Up Period, a certificate, signed by the chief financial officer or chief executive officer of the Company, certifying on behalf of the Company that the shares of Common Stock are “actively traded securities,” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act.
(m) The Company will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by existing Lock-Up Agreements for the duration of the periods contemplated in such agreements.
(n) The Company shall not, without the prior written consent of the Representatives, prepare or use a Free Writing Prospectus in connection with the offering and sale of the Common Shares or take any actions that would require the Company or the Underwriters to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations. The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, or retention where required, and legending. The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to the Underwriters an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein as identified in Section 10 hereof.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement covenants and of agrees with each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement Underwriters that:
(without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. a) The Company will advise file the Placement Agent promptly after it receives notice thereof of final Prospectus with the Commission within the time when periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Act, will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or Act; and the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placementoffering or sale of the Shares. The Company will pay the registration fee for this offering within the time period required by the Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects.
(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 90-day restricted period referred to in Section 4(j) hereof.
(d) The Company will advise the Placement Agent, Representatives as promptly after it receives notice thereof as practicable (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication or any amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment to amend the Registration Statement or to amend any amendment or supplement any to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional informationinformation including, and but not limited to, any request for information concerning any Testing-the-Waters Communication; (iiv) of the issuance by the Commission or any other governmental or regulatory authority of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package, the Prospectus or any Written Testing-the-Waters Communication or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include any 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 when the Prospectus, the Pricing Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser, not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending pursuant to Rule 401(g)(2) under the use Securities Act; and (viii) of the Base Prospectus or receipt by the final Prospectus or Company of any prospectus supplement or notice with respect to any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities Shares for offering or offer and sale in any jurisdiction, of jurisdiction or the institution initiation or threatened institution threatening of any proceeding for any such purpose, or of any request by ; and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its reasonable best efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or prevention suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or suspension of such use. If the Commission shall enter Prospectus or any Written Testing-the-Waters Communication or suspending any such stop order or order or notice qualification of prevention or suspension at the Shares and, if any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible momentis issued, or will file a new registration statement and use its best efforts to have such new registration statement declared effective obtain as soon as practicable. Additionally, possible the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commissionwithdrawal thereof.
3. (e) The Company will cooperate with the Placement Agent and the Purchasers Representatives in endeavoring to qualify the Securities Shares for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers Representatives may reasonably request 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 to 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, and provided further that the Company shall or (iii) subject itself to taxation in any such jurisdiction if it is not be required to produce any new disclosure documentotherwise so subject. The Company will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent Representatives may reasonably request for distribution of the SecuritiesShares.
(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 advise deliver to, or upon the Placement Agent promptly 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 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 suspension of Prospectus in final form, or as thereafter amended or supplemented, as the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionRepresentatives may reasonably request. If requested, the Company shall use its best efforts will deliver to obtain the withdrawal thereof Representatives at or before the earliest possible momentClosing 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), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
4. (g) The Company will comply with the Securities 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 Securities Shares as contemplated in this Agreement, Agreement and the Incorporated Documents and any 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 in connection with the distribution of any Securities contemplated by the Incorporated Documents an Underwriter or any Prospectus (the “Prospectus Delivery Period”)dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Placement Agent or counsel for the Placement AgentUnderwriters, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as existing at the case may betime 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.
(h) If the Pricing 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 Pricing 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 Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document Pricing Disclosure Package to comply with any law, the Company as promptly as practicable will promptly (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the Pricing Disclosure Package or (ii) prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, Commission an appropriate amendment to filing under the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements Exchange Act which shall be incorporated by reference in the Incorporated Documents and any Prospectus so that the Prospectus as so amended or supplementedsupplemented will not, in the light of the circumstances under which they were madecircumstances, as the case may be, not be misleading, or so that the Prospectus will comply with law.
(i) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) satisfying 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) No offering, pledge, sale, contract to sell, short sale or other disposition of any Ordinary Shares 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 90 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 restrictions contained in the foregoing sentence shall not apply to (i) the sale and issuance of the Shares to be sold hereunder, (ii) the issuance of Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other derivative security or stock-based award granted pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (iii) the issuance of Ordinary Shares, or options to purchase Ordinary Shares, or the grant of other equity-based awards (including any securities convertible into Ordinary Shares), to employees, officers, directors, advisors or consultants of the Company pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (iv) the filing of a registration statement on Form S-8 for the registration of Ordinary Shares issued pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (v) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares 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 (vi) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clauses (v) and (vi), the aggregate number of shares issued in all such acquisitions and transactions does not exceed 10% of the outstanding Ordinary Shares as of the date hereof.
(k) The Company will use its best efforts to maintain the listing of the Shares on the Exchange.
(l) The Company has caused each executive officer and director of the Company 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”).
(m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the Incorporated Documents or any Pricing Disclosure Package and the Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the .
(n) The Company will furnish maintain a transfer agent and, if necessary under the Placement Agent with jurisdiction of incorporation of the Company, a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which registrar for the Placement Agent reasonably objectsOrdinary Shares.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (o) The Company will not knowingly 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.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus General Disclosure Package, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Common Stock from any securities exchange upon which the Common Stock is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (i) During the Prospectus Delivery Period, the Company will cooperate comply with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement, The General Disclosure Package and the Prospectus. If during such statementsperiod any event or development occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will promptly amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurs an event or any Prospectus (the “Prospectus Delivery Period”), any event shall occur development as a result of which, which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will promptly deliver to the Placement Agent Representative and to dealers, an appropriate amendment to Underwriters’ Counsel a copy of the Registration Statement or supplement Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement, the Incorporated Documents General Disclosure Package and any Preliminary Prospectus or Prospectus or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended amendment thereof or supplemented, in the light of the circumstances under which they were madesupplement thereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingNew York City time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 P.M., New York City time, on the date of this Agreement, and documents (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to be filed under qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act within made publicly through the time periods E▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and in Rule 158 of the manner required by the Exchange ActRules and Regulations.
6. The (j) Except with respect to (i) securities of the Company will not takewhich may be issued in connection with an acquisition of another entity (or the assets thereof), directly (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or indirectly, any action designed to cause or result inthe assets thereof), or that has constituted (iii) the issuance of securities under the Company’s stock option plans with exercise or might reasonably be expected conversion prices at fair market value (as defined in such plans) in effect from time to constitutetime, during the six (6) months following the Closing Date, the stabilization Company or manipulation any successor to the Company shall not undertake any public or private offerings of any equity securities of the price Company (including equity-linked securities) without the prior written consent of the Representative.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
(l) [Intentionally omitted.]
(m) During the period of three (3) years from the Effective Date, the Company will make available to the Underwriters copies of all reports or other communications (financial or otherwise) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Underwriters: (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company are consolidated in reports furnished to its security holders generally or to the Commission); provided that any such item which is available on the E▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(n) The Company will not issue press releases or engage in any other publicity without the Representative’s prior written consent, for a period ending at 5:00 P.M. Eastern time on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(o) The Company shall use its reasonable best efforts to engage, by the Closing Date (and for no less than two (2) years following the Closing Date) Ascendant Partners, LLC as its financial public relations firm. The terms and conditions of such engagement shall be reasonably determined by the Company. The Company further agrees to consult with the Representative as is customary within the securities industry prior to the distribution to third parties of any financial information, news releases, or other publicity regarding the Company, its business, or any terms of the Offering, it being agreed that the Company shall give the Representative no less than twelve (12) hours prior notice of any such distribution and a reasonable opportunity during or prior to such period to review the contents of the proposed distribution.
(p) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representative, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders or to pay any accrued salaries or bonuses to any employees or former employees.
(q) The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock on the NASDAQ Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a result of a transaction approved by the holders of a majority of the voting securities of the Company. If the Company fails to maintain such listing of its Common Stock, on the NASDAQ Capital Market or other Trading Market, for a period of three (3) years from the Effective Date, the Company, at its expense, shall obtain and keep current a listing of such securities in the Standard & Poor’s Corporation Records Services or Mergent’s Industrial Manual; provided that Mergent’s OTC Industrial Manual is not sufficient for these purposes.
(r) During the period when the Prospectus is required to be delivered under the Securities Act or Exchange Act and for as long as the Option remains outstanding, the Company will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Yangtze River Development LTD)
Covenants of the Company. 1. The Company has delivered agrees that: ------------------------
(a) The Company, at or made available, or will as promptly as practicable deliver or make available, prior to the Placement Agent complete Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits filed therewith, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested from time to time by the Representatives.
(b) The Company will pay all expenses in connection with (i) the preparation and filing by it of each consent the Registration Statement and certificate Prospectus, (ii) the preparation, issuance and delivery of expertsthe Senior Notes, as applicable, filed as a part thereof, (iii) any fees and conformed expenses of the Trustee and (iv) the printing and delivery to the Underwriters in reasonable quantities of copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, (each as originally filed and as subsequently amended or supplemented). The Company also will pay all taxes, in such quantities and at such places as if any, on the Placement Agent reasonably requestsissuance of the Senior Notes. Neither In addition, the Company nor any will pay the reasonable fees and disbursements of its directors Underwriters' counsel, ▇▇▇▇ & Valentine, L.L.P., including fees and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material disbursements incurred in connection with the offering and sale qualification of the Securities pursuant Senior Notes under state securities or blue sky laws or investment laws (if and to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted extent such qualification is required by the Securities ActUnderwriters or the Company).
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the (c) If, at any time when any amendment a prospectus relating to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation Senior Notes is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of which, in which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company promptly will promptly (i) notify the Representatives to suspend solicitation of purchases of the Senior Notes, (ii) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance, and furnish (iii) at its own expense expense, furnish to the Placement Agent Representatives a reasonable quantity of the prospectus as so supplemented or amended. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of the Representatives, will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of the prospectus as supplemented or amended, complying with Section 10(a) of the Securities Act. During the period specified in the second sentence of this paragraph, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required to dealersbe filed by the Company under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, an appropriate that the Company shall not file such documents or amendments without also furnishing copies thereof to the Representatives and ▇▇▇▇ & Valentine, L.L.P.
(d) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement. As soon as the Company is advised thereof, it will advise the Representatives of the issuance of any stop order under the Securities Act with respect to the Registration Statement or supplement any part thereof, or the institution by the Commission of any stop order proceedings with respect to 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.
(e) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (which need not be audited) in reasonable detail, covering a period of at least 12 months beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light requirements of Section 11(a) of the circumstances under which they were made, as Securities Act.
(f) For a period of five years following the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the PlacementClosing Date, the Company will furnish deliver to the Placement Agent with Representatives, as soon as practicable after the end of each fiscal year, a copy balance sheet of the Company as of the end of such proposed amendment year and statements of income and earnings reinvested in business for such year, all as certified by independent public or supplement certified public accountants, and will not file any deliver to the Representatives upon request, as soon as practicable after the end of each quarterly period, statements of income and earnings reinvested in business for the 12-month period ending with the end of such amendment or supplement to which the Placement Agent reasonably objectsquarterly period.
5. During (g) The Company will use its best efforts promptly to do and perform all things to be done and performed by it hereunder prior to the Prospectus Delivery PeriodClosing Date and to satisfy all conditions precedent required of it to the delivery by it of the Senior Notes.
(h) The Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Senior Notes for offer and sale under the securities or blue sky laws of such states as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(i) Fees and disbursements of ▇▇▇▇ & Valentine, L.L.P., who are acting as counsel for the Underwriters (exclusive of fees and disbursements of such counsel which are to be paid as set forth in paragraph 6(b)), shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company will duly file, on a timely basis, with shall reimburse the Commission and Representatives for the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 account of the price Underwriters for the amount of any securities of the Companysuch fees and disbursements.
Appears in 1 contract
Sources: Underwriting Agreement (Virginia Electric & Power Co)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representatives of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representatives and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentatives reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representatives in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Common Stock or the Warrants from any securities exchange upon which the Common Stock is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representatives or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representatives and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representatives and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will promptly deliver to the Placement Agent Representatives and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingNew York City time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 P.M., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its reasonable best efforts, in cooperation with the Representatives, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representatives may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representatives, which shall not be unreasonably withheld.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representatives, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representatives the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
(l) [Intentionally omitted.]
(m) [Intentionally omitted.]
(n) The Company will not file issue press releases or engage in any other publicity without the Representatives’ prior written consent, for a period ending at 5:00 P.M. Eastern time on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(o) The Company shall use its reasonable best efforts to engage, by the Closing Date (and for no less than two (2) years following the Closing Date) ▇▇▇▇ ▇▇▇▇▇▇▇ International as its financial public relations firm. The terms and conditions of such engagement shall be reasonably determined by the Company. The Company further agrees to consult with the Representatives as is customary within the securities industry prior to the distribution to third parties of any financial information, news releases, or other publicity regarding the Offering, it being agreed that the Company shall give the Representatives no less than twelve (12) hours prior notice of any such amendment distribution and a reasonable opportunity during or supplement prior to which such period to review the Placement Agent reasonably objectscontents of the proposed distribution.
5(p) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representatives, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders or to pay any accrued salaries or bonuses to any employees or former employees.
(q) The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock and the Warrants on the NASDAQ Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a result of a transaction approved by the holders of a majority of the voting securities of the Company. If the Company fails to maintain such listing of its Common Stock or Warrants, on the NASDAQ Capital Market or other Trading Market, for a period of three (3) years from the Effective Date, the Company, at its expense, shall obtain and keep current a listing of such securities in the Standard & Poor’s Corporation Records Services or Mergent’s Industrial Manual; provided that Mergent’s OTC Industrial Manual is not sufficient for these purposes.
(r) During the period when the Prospectus Delivery Periodis required to be delivered under the Securities Act and for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(s) The Company shall use its best efforts to maintain the effectiveness of the Registration Statement and a current Prospectus relating thereto for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding. During any period when the Company fails to have maintained an effective Registration Statement or a current Prospectus relating thereto and a holder of a Firm Warrant, Option Warrant or Underwriters’ Warrant desires to exercise such warrant and, in the manner required opinion of counsel to the holder, Rule 144 is not available as an exemption from registration for the resale of the shares of Common Stock underlying such warrant (such shares, the “Warrant Shares”), the Company shall immediately file a registration statement registering the resale of the Warrant Shares and use its best efforts to have it declared effective by the Exchange ActCommission within thirty (30) days.
6. (t) The Company will use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
(u) The Company will not take, and will cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any Securities.
(v) The Company shall cause to be prepared and delivered to the Representatives, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the Companyfollowing conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availablecovenants and agrees that, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery Note shall be outstanding, except as otherwise required under the Related Agreements, the Company shall:
(a) Promptly pay and discharge all lawful taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, before the same shall become in default as well as all lawful material claims for labor, materials and supplies which, if unpaid, might become a prospectus is lien or charge upon such properties or any part thereof; provided, however, that it shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in connection good faith by appropriate proceedings, and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested.
(b) Pay, or cause to be paid, all material debts and perform, or cause to be performed, all material obligations promptly and in accordance with the Placement. The Company will advise respective terms thereof.
(c) Implement and maintain a standard system of accounting in accordance with generally accepted accounting principles ("GAAP").
(d) Provide to the Placement Agent, promptly after it receives notice thereof Investor the following:
(i) as soon as available after the end of any request each fiscal year of the Company, a consolidated balance sheet of the Company as at the end of that fiscal year and the related statement of earnings, stockholders' equity and changes in financial position of the Company for such fiscal year, in accordance with GAAP and audited by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and independent certified public accountants of recognized standing; and
(ii) as soon as available and in any event within ninety (90) days after the end of each of the issuance first three quarters of each fiscal year (commencing the quarter ending September 30, 1999), an unaudited consolidated balance sheet of the Company as of the end of that quarter, and the related unaudited statement of earnings of the Company for the period from the beginning of that fiscal year to the end of that quarter, certified by the Commission of any stop order suspending the effectiveness principal financial officer of the Registration Statement or any postCompany as having been prepared in accordance with GAAP, subject to normal year-effective amendment thereto or any order directed at any Incorporated Document, if anyend adjustments.
(e) Do, or any amendment cause to be done, all things that may be necessary to (i) maintain its due organization, valid existence and good standing under the laws of its state of incorporation; (ii) preserve and keep in full force and effect all qualifications, registrations and licenses in those jurisdictions in which the failure to do so could or supplement thereto would have a material adverse effect; (iii) maintain its power or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment authority to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall carry on its business as now conducted; and (iv) use its best efforts to prevent keep available the issuance services of any such stop its key present employees and agents and maintain its current relations with suppliers, customers, distributors and joint venture partners (subject to the business judgment of executive management).
(f) At all times maintain, preserve, protect and keep material property used and useful in the conduct of its business in good repair, working order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts and condition (subject to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement normal wear and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(btear), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime make all needful and proper repairs, prepare renewals, replacements, betterment and file such statementsimprovements thereto, reports and other documents as are or so that the business carried on in connection therewith may be required properly conducted at all times.
(g) Keep adequately insured all property of a character usually insured by similar corporations and carry such other insurance as is usually carried by similar corporations.
(h) At all reasonable times upon the Investor's request and upon advance notice to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Actfor good reason, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated representatives designated by the Incorporated Documents or any Prospectus (Investor to have access to the “Prospectus Delivery Period”), any event shall occur as a result of which, in books and records relating to the judgment operations and procedures of the Company or in the opinion (subject to execution of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsconfidentiality undertakings).
5. During the Prospectus Delivery Period(i) Not assume, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeguaranty or otherwise, directly or indirectly, become liable or responsible for the obligations of any action designed other person or entity, except for 75% or greater owned subsidiaries, for the purpose of paying or discharging the obligations of such person or entity unless such guarantees relate to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation business of the price Company, are incurred in the ordinary course of its business and do not exceed in the aggregate $100,000.
(j) Not declare or pay any cash dividends or authorize or make any other distribution on any class of equity securities of the Company, except for the Series D and Series E Convertible Preferred Stock.
(k) Except as set forth in Schedule 6(k) hereto, not consolidate with or merge with or into any entity or sell, lease, transfer, exchange or otherwise dispose of any material part of its properties and assets except in the ordinary course of business, however, the Company may engage in any of the foregoing transactions with a parent or subsidiary of the Company so long as such parent or subsidiary is no less creditworthy than the Company and such parent or subsidiary assumes the obligations of the Company hereunder.
(l) shall not enter into any agreement or understanding which may, directly or indirectly, cause or effect a change in "control" as defined in Rule 405 under the Securities Act of 1933, without the prior written consent of the Investor.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availablecovenants with each Underwriter that:
(a) As soon as possible after the execution and delivery of this Agreement, or the Company will as 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. Upon request, the Company will promptly as practicable deliver or make availableto the Representative and to counsel for the Underwriters, to the Placement Agent complete extent not previously delivered, one fully executed copy or one conformed copies copy, certified by an officer of the Company, of the Registration Statement Statement, as originally filed, and of all amendments thereto, heretofore or hereafter made, (other than those relating solely to Registered 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 of experts, as applicable, included therein or filed as a part thereofan exhibit thereto, and will deliver to the Representative for distribution to the Underwriters as many conformed copies of the Registration Statement foregoing (without excluding the exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places but including all documents incorporated therein) as the Placement Agent Representative may reasonably requestsrequest. Neither the The Company nor any of its directors and officers has distributed and none of them will distribute, prior also send to the Closing Date, any offering material in connection with Underwriters as soon as practicable after the offering date of this Agreement and sale of the Securities pursuant thereafter from time to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, time as many copies of the documents incorporated by reference therein and any other materials permitted Prospectus as the Representative may reasonably request for the purposes required by the Securities Act.
2. The Company will advise (b) During such period (not exceeding nine months) after the Placement Agent promptly after it receives notice thereof commencement of the time when offering of the Shares as the Underwriters may be required by law to deliver a Prospectus, if any amendment event relating to or affecting the Registration Statement has been filed Company, or becomes effective or any of which the Company shall be advised in writing by the Representative shall occur, which in the Company’s reasonable opinion, after consultation with counsel for the Underwriters, should be set forth in a supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date an amendment of the Prospectus Supplement and for so long as in order to make the delivery Prospectus not misleading in the light of the circumstances when it is delivered to a prospectus purchaser, or if it is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission necessary to amend the Registration Statement or Prospectus to amend or supplement any Prospectus or for additional information, and (ii) of comply with the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeAct, the Company will use forthwith at its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement expense prepare and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect furnish to the timely filing of documents thereunder, Underwriters and will use its best efforts to confirm that any filings made dealers named by the Company under such Rule 424(b) are received in Representative a timely manner by reasonable number of copies of a supplement or supplements or an amendment or amendments to the Commission.
3. The Company Prospectus which will cooperate with supplement or amend the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) Prospectus so that as the Placement Agent and the Purchasers may reasonably request 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 supplemented or to file a general consent to service of process in any jurisdiction where amended it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations will not contain any untrue statement of the Commission thereunder, so as a material fact or omit to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and state any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beProspectus 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 supplements or amendments to the Prospectus, complying with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its 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 (in form complying with the provisions of Section 11(a) of the Securities 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 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 perform all things to be done and performed by it is necessary at hereunder prior to the Relevant Closing Date and to satisfy all conditions precedent to the delivery by it of the Shares.
(e) The Company will advise the Representative promptly of the filing of the Prospectus pursuant to Rule 424 and of any time to amend amendment or supplement to the Incorporated Documents Prospectus or any Prospectus 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 Representative may designate, and will 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 or dealer in securities, or to file any general consents to service of process under the Exchange Act laws of any Incorporated Document jurisdiction.
(g) Prior to comply with any lawthe termination of the offering of the Shares, the Company will promptly prepare and not file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate any amendment to the Registration Statement or supplement to the Registration Statement, Prospectus (in each case other than amendments or supplements relating to Registered Securities other than the Incorporated Documents Shares) which shall not have previously been furnished to the Representative or any Prospectus that is necessary in order to make of which the statements in the Incorporated Documents and any Prospectus as so amended Representative shall not previously have been advised or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent Representative shall reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission object in writing and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required which has not been approved by the Exchange Act.
6. The Company will not take, directly Representative or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, counsel for the stabilization or manipulation Underwriters acting on behalf of the price of any securities of the CompanyUnderwriters.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus, (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any proceedings to remove, suspend or terminate from listing the shares of Common Stock or Warrants from any securities exchange upon which the Public Securities Common Stock is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (i) During the Prospectus Delivery Period, the Company will cooperate comply with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event or development occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurs an event or any Prospectus (the “Prospectus Delivery Period”), any event shall occur development as a result of which, which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will promptly deliver to the Placement Agent Representative and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingNew York time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, 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 of the Securities Act by the earlier of: (i) 10:00 P.M., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its commercially reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Except with respect to: (1) the Company’s sale of the Securities hereunder, (2) the issuance of Common Stock, options to acquire Common Stock or other equity awards pursuant to the Company’s employee benefit plans, qualified stock option plans, employee stock purchase plans or other employee compensation plans as such plans are in existence on the date hereof and described in the Prospectus, (3) the issuance of Common Stock pursuant to the valid exercises, vesting or settlements of options, warrants or rights outstanding on the date hereof, (4) the issuance of shares of Common Stock or securities convertible or exercisable into shares of Common Stock to consultants (including in connection with investor relations activities), (5) the issuance of shares of Common Stock or securities convertible or exercisable into shares of Common Stock in connection with any acquisition, strategic partnership, joint venture or collaboration or similar transaction, including shares of Common Stock to be issued in a related investment to which the Company is or may become a party, or the acquisition or license of any products or technology by the Company, but shall not include any such transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (6) the sale of Common Stock to Aspire Capital Fund, LLC (“Aspire”) pursuant to the terms of the Common Stock Purchase Agreement, dated as of December 6, 2016, between the Company and Aspire (the “2016 Aspire Agreement”), (7) the issuance of restricted securities in private placements in connection with any so-called "PIPE" offering, strategic partnership, joint venture or collaboration or similar transaction and no registration statement for the resale of such securities (other than in connection with a copy so-called "PIPE" offering) is filed on or after August 30, 2017 and (8) the issuance of any securities of the Company (including any securities underlying derivative securities) in connection with the declaration of a dividend; provided that, prior to the issuance of any such securities pursuant to clause (4) or (5), the Company shall cause the recipients of such proposed amendment securities to execute and deliver to the Underwriters letter agreements, each substantially in the form attached as Annex II or supplement and otherwise restrict transfer of any such securities for the period contemplated by Annex II, during the six (6) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative.
(k) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof) or (iii) as contemplated by Section 4(j) of this Agreement (including any registration statement filed on or after August 30, 2017 for the purpose of registering shares of Common Stock issuable upon the exercise of derivative securities or in connection with a so-called "PIPE" transaction), during the six (6) months following the Closing Date, the Company will not file any such amendment registration statement relating to the offer or supplement to which sale of any of the Placement Agent reasonably objectsCompany’s securities, except Form S-8 filed with the Commission in connection with a Company stock option plan.
5. During (l) Following the Prospectus Delivery PeriodClosing Date, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
(m) For a period of one (1) year from the effective date of the Registration Statement, the Company, at its expense, shall, for the first month, provide the Representative on a weekly basis a copy of the Company’s weekly securities transfer sheets and securities positions listings, and thereafter shall provide to the Representative on a monthly basis a copy of the Company’s weekly securities transfer sheets and securities positions listings from the previous month.
(n) If the Company fails to maintain the listing of its shares of Common Stock or Warrants on a nationally recognized exchange, for a period of three (3) years from the Effective Date, the Company, at its expense, shall obtain and keep current a listing in the Standard & Poor’s Corporation Records Services or the M▇▇▇▇’▇ Industrial Manual; provided that M▇▇▇▇’▇ OTC Industrial Manual is not sufficient for these purposes.
(o) During the period of three (3) years from the Effective Date, the Company will make available to the Underwriters copies of all reports or other communications (financial or otherwise) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Underwriters: (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company are consolidated in reports furnished to its security holders generally or to the Commission); provided that any such item which is available on the E▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(p) The Company will not issue press releases or engage in any other publicity without the Representative’s prior written consent, for a period ending at 5:00 P.M. Eastern time on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(q) Intentionally omitted.
(r) As of the Closing, the Company shall use its commercially reasonable best efforts to engage, by the Closing Date (for no less than three (3) years following the Closing Date) a transfer agent reasonably acceptable to the Representative.
(s) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representative, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders.
(t) The Company will use its commercially reasonable best efforts to effect and maintain the listing of the Securities on the NASDAQ Capital Market for at least three (3) years after the Closing Date, unless such listing is terminated as a result of a transaction approved by the holders of a majority of the shares of the Common Stock of the Company.
(u) During the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, the Company will use its best efforts to file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(v) The Company will use its commercially reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date, and to satisfy all con
Appears in 1 contract
Covenants of the Company. 1The Company covenants with each Underwriter ------------------------ that:
(a) 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 delivered or made available, or will as promptly as practicable deliver or make availableto the Representative and to counsel for the Underwriters, to the Placement Agent complete extent not previously delivered, one fully executed copy or one conformed copies copy, certified by an officer of the Company, of the Registration Statement Statement, as originally filed, and of all amendments thereto, heretofore or hereafter made, (other than those relating solely to Registered 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 of experts, as applicable, included therein or filed as a part thereofan exhibit thereto, and will deliver to the Representative for distribution to the Underwriters as many conformed copies of the Registration Statement foregoing (without excluding the exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places but including all documents incorporated therein) as the Placement Agent Representative may reasonably requestsrequest. Neither the The Company nor any of its directors and officers has distributed and none of them will distribute, prior also send to the Closing Date, any offering material in connection with Underwriters as soon as practicable after the offering date of this Agreement and sale of the Securities pursuant thereafter from time to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, time as many copies of the documents incorporated by reference therein Prospectus and any other materials permitted preliminary prospectus supplement as the Representative may reasonably request for the purposes required by the Securities Act.
2. The Company will advise (b) During such period (not exceeding nine months) after the Placement Agent promptly after it receives notice thereof commencement of the time when offering of the Shares as the Underwriters may be required by law to deliver a Prospectus, if any amendment event relating to or affecting the Registration Statement has been filed Company, or becomes effective or any 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 the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date an amendment of the Prospectus Supplement and for so long as in order to make the delivery Prospectus not misleading in the light of the circumstances when it is delivered to a prospectus purchaser, or if it is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission necessary to amend the Registration Statement or Prospectus to amend or supplement any Prospectus or for additional information, and (ii) of comply with the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeAct, the Company will use forthwith at its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement expense prepare and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect furnish to the timely filing of documents thereunder, Underwriters and will use its best efforts to confirm that any filings made dealers named by the Company under such Rule 424(b) are received in Representative a timely manner by reasonable number of copies of a supplement or supplements or an amendment or amendments to the Commission.
3. The Company Prospectus which will cooperate with supplement or amend the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) Prospectus so that as the Placement Agent and the Purchasers may reasonably request 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 supplemented or to file a general consent to service of process in any jurisdiction where amended it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations will not contain any untrue statement of the Commission thereunder, so as a material fact or omit to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and state any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beProspectus 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 it is necessary at any time supplements or amendments to amend or supplement the Incorporated Documents or any Prospectus or to file under Prospectus, complying with Section 10(a) of the Exchange Act any Incorporated Document to comply with any law, the Securities Act.
(c) The Company will promptly prepare and file make generally available to its security holders, as so on 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 (in form complying with the Commissionprovisions of Section 11(a) of the Securities 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 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 furnish at its own expense perform all things to be done and performed by it hereunder prior to the Placement Agent Relevant Closing Date and to dealers, an appropriate amendment satisfy all conditions precedent to the Registration Statement delivery by it of the Shares.
(e) The Company will advise the Representative promptly of the filing of the Prospectus pursuant to Rule 424 and of any amendment or supplement to the Prospectus or Registration Statement, the Incorporated Documents Statement or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleadingofficial notice of institution of proceedings for, or so that the Registration Statemententry of, a stop order suspending the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending effectiveness of the Registration Statement or supplementing and, if such a stop order should be entered, use its best efforts to obtain the Incorporated Documents or any Prospectus in connection with the Placement, the prompt removal thereof.
(f) The Company will furnish use its best efforts to qualify the Placement Agent with a copy Shares, as may be required, for offer and sale under the Blue Sky or legal investment laws of such proposed amendment or supplement jurisdictions as the Representative may designate, and will not file any and make in each year such amendment statements or supplement to which the Placement Agent reports as are or may be reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The laws of such jurisdictions; provided, however, that the Company will shall not take, directly be required to qualify as a foreign corporation or indirectly, any action designed to cause or result indealer in securities, or that has constituted or might reasonably be expected to constitute, file any general consents to service of process under the stabilization or manipulation of the price laws of any securities of the Companyjurisdiction.
Appears in 1 contract
Covenants of the Company. 1The Company acknowledges, covenants and agrees with the Representative that:
(a) The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing. The Company has will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or made availablein lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or will as promptly as practicable deliver dealer (the “Prospectus Delivery Period”), prior to amending or make available, to the Placement Agent complete conformed copies of supplementing the Registration Statement and or the Prospectus, the Company shall furnish to the Representatives for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, 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 distribute, prior to shall promptly advise the Closing Date, any offering material Representative in connection with the offering and sale writing (i) of the Securities pursuant to the Placements other than the Transaction Documentsreceipt of any comments of, or requests for additional or supplemental information from, the Base Prospectus, the Prospectus Supplement, Commission relating to the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Class A Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to will promptly notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required to be filed under the Exchange Act within (ii) the time periods and in the manner required that confirmations are given or sent, as specified by the Exchange ActRule 462(b)(2).
6. (h) The Company will not takeuse its commercially reasonable efforts, directly in cooperation with the Representative, at or indirectlyprior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions, domestic or foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any action designed such jurisdiction, to cause or result inexecute a general consent to service of process in any such jurisdiction, or that has constituted or might reasonably be expected to constitutesubject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(i) During the six (6) months period following the date of this Agreement(the “Company Lock-up Period”), the stabilization or manipulation Company may not, without the prior written consent of the price Representative, (A) offer, sell, issue, agree or contract to sell or issue or grant any option for the sale of any securities of the Company, except for (i) the issuance of Class A Ordinary Shares upon the exercise or conversion of securities that are issued and outstanding on the date of this Agreement and are described in the Registration Statement and the Prospectus, (ii) the issuance by the Company of an option to purchase Class A Ordinary Shares or other securities of the Company under any stock compensation plan of the Company outstanding on the date hereof, and provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits, adjustments or combinations as set forth in such securities) or to extend the term of such securities, (iii) the issuance of securities in connection with mergers, acquisitions, joint ventures, licensing arrangements or any other similar non-capital raising transactions provided such shares are not registered pursuant to a registration statement, or (B) file any registration statement relating to the offer or sale of any of the Company’s securities, except for a registration statement on Form S-8 in connection with the registration of Class A Ordinary Shares issuable under any employee equity-based compensation plan, incentive plan, stock plan or dividend reinvestment plan adopted and approved by a majority of the disinterested directors of the Company.
(j) Schedule II hereto contains a complete and accurate list of the Company’s executive officers, directors and holders of 5% or more of the Company’s Class A Ordinary Shares (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex I (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(k) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver 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 (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two Business Days before the effective date of the release or waiver.
(l) For a period of two (2) years from the Closing Date, the Company shall retain VStock Transfer, LLC as the Company’s transfer agent and registrar for the Class A Ordinary Shares or a transfer and registrar agent for the Class A Ordinary Shares reasonably acceptable to the Representative.
(m) Reserved
(n) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative. The Representative acknowledges that the Auditor is acceptable to the Representative.
(o) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such item which is available on the E▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(p) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent which shall not be unreasonably withheld, for a period ending at 5:00 p.m. Eastern time on the first Business Day following the forty fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(q) The Company hereby grants the Representative the right of first refusal for a period of twelve (12) months after the closing of this Offering or Alternative Transaction (as defined below) to act as sole managing underwriter and bookrunner, or sole placement agent or sales agent, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings in the United States for which we retain the service of an underwriter, financial advisor, finder or other person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary of the Company. The Company shall not offer to retain any entity or person in connection with any such offering in the United States on terms more favorable than terms on which it offers to retain the Representative. Such offer shall be made in writing in order to be effective. The Representative shall notify the Company within ten (10) business days of its receipt of the written offer contemplated above as to whether or not it agrees to accept such retention. If the Representative declines such retention, or fails to respond within such ten (10) business day period, the Company shall have no further obligations to the Representative with respect to the offering for which it has offered to retain the Representative except as otherwise provided for in the Engagement Letter referenced below. “Alternative Transaction” shall mean an alternative offering (registered or unregistered) of the Company’s equity securities or a reverse merger during the Engagement Period (as defined in the Engagement Letter between the Representative and the Company, dated May 29, 2023 (the “Engagement Letter”).
Appears in 1 contract
Sources: Underwriting Agreement (Sea Forrest International Ltd.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Shares and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to promptly will notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(e) The Company will promptly prepare deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and furnish will maintain in the Company’s files manually signed copies of such documents for at its own expense least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Placement Agent Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to dealerssuch documents, an appropriate amendment if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, in New York City in such quantities as the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange ActUnderwriters may reasonably request.
6. 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.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably objects within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Representative in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission the Common Stock and/or the Series A Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered agrees that: ------------------------
(a) The Company, at or made available, or will as promptly as practicable deliver or make available, prior to the Placement Agent complete Closing Date, will deliver to the Representative conformed copies of the Registration Statement as originally filed, including all exhibits, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representative.
(b) The Company will pay all expenses in connection with (i) the preparation and filing by it of each consent the Registration Statement and certificate Prospectus and the printing of expertsthis Agreement, as applicable(ii) the preparation, filed as a part thereofissue and delivery of certificates for the Debt Securities, (iii) any fees and conformed expenses of the Trustee and (iv) the printing and delivery to the Underwriters in reasonable quantities of copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement(each as originally filed and as subsequently amended). The Company also will pay all taxes, as amended or supplementedif any, in such quantities and at such places as except transfer taxes, on the Placement Agent reasonably requestsissue of the Debt Securities. Neither In addition, the Company nor any will pay the reasonable out of its directors pocket fees and officers has distributed and none disbursements of them will distributeUnderwriters' outside counsel, prior to the Closing Date[Underwriters' Counsel], any offering material in connection with the offering and sale qualification of the Debt Securities pursuant under state securities or blue sky laws or investment laws (if and to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted extent such qualification is required by the Securities ActUnderwriters or the Company).
2. The Company will advise the Placement Agent promptly after it receives notice thereof of (c) If, during the time when any amendment a prospectus relating to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation Debt Securities is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of which, in which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state any material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Act, the Company promptly will promptly (i) notify the Representative to suspend solicitation of purchases of the Debt Securities and (ii) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Debt Securities after the expiration of the period specified in the preceding sentence, and the Company, upon the request of the Representative, will furnish at its own expense to the Placement Agent Representative, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Prospectus, complying with Section 10(a) of the Securities Act. During the period specified in the second sentence of this Section, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to dealers, an appropriate amendment the Representative and [Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representative a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement supplement; and the Company will not file also advise the Representative 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 which prevent the Placement Agent reasonably objectsissuance of any such stop order and to obtain as soon as possible its lifting, if issued.
5. During (e) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Prospectus Delivery PeriodCompany (which need not be audited) in reasonable detail, covering a period of at least 12 months beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Debt Securities for offer and sale under the securities or blue sky laws of such states as the Representative may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(g) Fees and disbursements of [Underwriters' Counsel] who are acting as counsel for the Underwriters (exclusive of fees and disbursements of such counsel which are to be paid as set forth in Section 6(b)), shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company will duly file, on a timely basis, with shall reimburse the Commission and Representative for the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 account of the price Underwriters for the amount of any securities of the Companysuch fees and disbursements.
Appears in 1 contract
Sources: Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement covenants and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection agrees with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.several Underwriters as follows:
2. (a) The Company will advise notify the Placement Agent Representatives promptly after it receives notice thereof (i) of the time when any post-effective amendment to the Registration Statement has been filed or becomes effective or become effective; (ii) any supplement to the Base Prospectus or the Sale Preliminary Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(dfiled; (iii) of the Exchange Act subsequent to receipt of any comments from the date of the Prospectus Supplement Commission; and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (iiv) of any request by the Commission for any amendment or supplement to amend the Registration Statement Statement, Prospectus or the Sale Preliminary Prospectus or additional information relating thereto. If the Company has elected to rely on Rule 430B under the Act, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430B with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430B, if applicable. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b). The Company will not file any amendment or supplement to the Registration Statement, Prospectus or the Sale Preliminary Prospectus which is not in compliance with Rules 424(b), 430B or 434 under the Act or to amend which the Representatives shall reasonably object by notice to the Company after having been furnished a copy thereof a reasonable time prior to the filing.
(b) The Company will advise the Representatives, promptly after the Company receives notice or supplement any Prospectus or for additional informationobtains knowledge thereof, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities Common Shares for offering or sale in any jurisdictionjurisdiction or quoted for trading on The NASDAQ Global Select Market, or of the institution or threatened institution initiation or, to the Company’s knowledge, threatening of any proceeding for any such purpose, or of any request by ; and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will use its best efforts to prevent the issuance of any such stop order or prevention suspension or suspension of to obtain its withdrawal if such use. If the Commission shall enter any such a stop order or order suspension should be issued.
(c) During the period beginning on the Initial Sale Time and ending on the later of the Closing Date or notice such date, as in the opinion of prevention or suspension at any timethe Underwriters, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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 Prospectus is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is no longer required by law to be delivered in connection with the distribution of any Securities contemplated sales by the Incorporated Documents an Underwriter or any Prospectus a dealer (the “Prospectus Delivery Distribution Period”), the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in effect, so far as necessary to permit the sale and distribution of the Common Shares by the Underwriters as contemplated by the provisions hereof and the Prospectus. If, during the Distribution Period the Sale Preliminary Prospectus is being used to solicit offers to purchase Common Shares at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, which it becomes is necessary to amend or supplement the Incorporated Documents or any Sale Preliminary Prospectus in writing in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Sale Preliminary Prospectus to comply with applicable law, the Company shall promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Sale Preliminary Prospectus so that the statements in the Sale Preliminary Prospectus as so amended or supplemented will not, in the case may belight of the circumstances when the Sale Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Sale Preliminary Prospectus, as amended or supplemented, will comply with applicable law. If during the Distribution Period any event occurs, or fails to occur, as a result of which, in the judgment of the Company or in the opinion of the Representatives, (i) the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if (ii) it is becomes necessary at any time to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Act, then the Company will promptly notify the Representatives and will prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealersUnderwriters, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, Prospectus so that the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplementedsupplemented will not, in the light of the circumstances under which they were madewhen it is so delivered, as the case may be, not be misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, Prospectus will comply with lawthe Act.
(d) The Company shall cooperate with the Representatives and counsel for the Underwriters in endeavoring to qualify the Common Shares for offering and sale under (or obtain exemptions from the application of) the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may reasonably designate; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to service of general process, to qualification to do business as a foreign entity, to registration as a securities dealer or to taxation as a foreign corporation. Before amending In each jurisdiction in which the Common Shares have been so qualified, the Company will file such statements and reports as may be required to be filed by it by the laws of such jurisdiction to continue such qualification in effect so long as required for the distribution of such securities.
(e) During the Distribution Period, the Company shall furnish to the Underwriters copies of (i) the Registration Statement or supplementing as originally filed (including all exhibits filed therewith), each amendment thereto (without exhibits) and (ii) each of the Incorporated Documents or any Preliminary Prospectuses, the Prospectus and all amendments and supplements thereto, in connection each case as soon as available and, with respect to the documents in clause (ii), in such quantities as the Representatives may from time to time reasonably request.
(f) For a period of two years commencing with the Placementdate hereof, the Company will furnish to the Placement Agent with a copy Representatives copies of such proposed amendment or supplement all documents, reports and will not file any such amendment or supplement other information furnished by the Company to which the Placement Agent reasonably objectsholders of its Common Stock generally except, in each case, if available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
5. During (g) The Company shall make generally available to holders of the Common Stock as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the date on which a prospectus supplement is filed pursuant to Rule 424(b) under the Act that satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(h) The Company shall apply the net proceeds received by it from the sale of the Common Shares for the purposes set forth in the Prospectus Delivery Periodunder the caption “Use of Proceeds,” including the repayment of all indebtedness outstanding, if any, under the credit facility described under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Sources of Capital — Revolving Credit Facility”.
(i) The Company shall not take, directly or indirectly, prior to the termination of the offering contemplated by this Agreement, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(j) For so long as the shares of Common Stock sold in the offering contemplated by this Agreement are listed on The NASDAQ Global Select Market or a comparable securities exchange or market, the Company will duly shall engage and maintain a registrar and transfer agent for the Common Stock.
(k) The Company shall file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within during the time periods and in the manner required by the Exchange ActDistribution Period.
6(l) For a period of 90 days after the date of the Prospectus (the “Lock-Up Period”) the Company shall not, without the prior written consent of ▇.▇. The Company will not take▇▇▇▇▇▇▇▇ & Co., (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any action designed Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to cause purchase Common Stock or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any other securities of the Company that are substantially similar to Common Stock, or enter into a transaction that would have the same effect; or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise; (2) publicly disclose the intention to make any such offer, sale, hypothecation, pledge, grant or disposition, or to enter into any such transaction, swap, hedge or other arrangement; or (3) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of 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; provided, however, that the foregoing restrictions do not apply to (i) the registration of the Common Shares and the sales thereof to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Prospectus and the Incorporated Documents, and (iii) the grant of employee stock options not exercisable during the Lock-Up Period pursuant to plans described in the Incorporated Documents; provided, further, that, if (x) within 15 days of the expiration of the Lock-Up Period, the Company issues an earnings release or discloses material news, or a material event relating to the Company occurs, or (y) before the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period beginning on the last day of the Lock-Up Period, then in any such case the restrictions imposed by this Section 4A(l) shall continue to apply until the expiration of the 15-day period beginning on the issuance of the earnings release, the disclosure of the material news or the occurrence of the material event; provided, moreover, that the foregoing clause shall not apply if the Company delivers to ▇.▇. ▇▇▇▇▇▇▇▇ & Co., not sooner than 18 nor later than 16 days before the last day of the Lock-Up Period, a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of the Company that the shares of Common Stock are not “actively traded securities,” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act.
(m) The Company shall not, without the prior written consent of the Representatives, prepare or use a Free Writing Prospectus in connection with the offering and sale of the Common Shares or take any actions that would require the Company or the Underwriters to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations. The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, or retention where required, and legending. The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein as identified in Section 11 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Sterling Construction Co Inc)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials, or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(iii) The Company shall use commercially reasonable efforts to continually comply with the PRC laws and regulations governing the Company’s listing on an exchange not in the PRC, rectify or cure any non-compliance, and implement and maintain content control and other measures in continuing compliance with PRC laws and regulations after the Closing Date.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least three (3) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., Eastern Time, on the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this Offering, any of the entities and individuals listed on Schedule B hereto, without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Representative’ prior written consent, for a period ending at 5:00 P.M., Eastern time, on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representative, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials, and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its best efforts to effect and maintain the Placement Agent with listing of the Shares on the Nasdaq for at least three (3) years after the Effective Date, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use its best efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within one (1) Business Day from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 1 contract
Covenants of the Company. 1. The Company acknowledges, covenants and agrees with the Underwriters that:
(a) The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has delivered or made available, or been used) pursuant to Rule 424(b) within the prescribed time period and will as promptly as practicable deliver or make available, provide evidence satisfactory to the Placement Agent complete conformed copies Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement and or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor shall promptly advise the Underwriter in writing of (i) the receipt of any of its directors and officers has distributed and none of them will distributecomments of, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documentsor requests for additional or supplemental information from, the Base ProspectusCommission, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus any prospectus or the Prospectus Supplement has been filed Prospectus, (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of which, in which the judgment Prospectus would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(e) The Company will promptly deliver to the Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Incorporated Documents and any Prospectus as so amended or supplemented, in Company’s files manually signed copies of such documents for at least five (5) years after the light date of filing thereof. The Company will promptly deliver to each of the circumstances under which they were madeUnderwriters such number of copies of any Preliminary Prospectus, as the case may beProspectus, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectusand all amendments of and supplements to such documents, as so amended or supplementedif any, will comply with law. Before amending and all documents which are exhibits to the Registration Statement or supplementing the Incorporated Documents and Prospectus or any Prospectus in connection with amendment thereof or supplement thereto, as the PlacementUnderwriters may reasonably request. Prior to 10:00 a.m., New York time, on the Business Day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with a copy copies of the Prospectus in New York City in such proposed amendment or supplement and will not file any such amendment or supplement to which quantities as the Placement Agent Underwriters may reasonably objectsrequest.
5. During (f) The Company consents to the use and delivery of the Preliminary Prospectus Delivery Periodby the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company will duly file, on shall both file a timely basis, Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the Trading Market all reports applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and documents required to be filed under the Exchange Act within (ii) the time periods and in the manner required that confirmations are given or sent, as specified by the Exchange ActRule 462(b)(2).
6. (h) The Company will not takeuse its best efforts, directly in cooperation with the Representative, at or indirectly, any action designed prior to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation time of effectiveness of the price Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such domestic jurisdictions as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(1) Except with respect to (i) the issuance of securities pursuant to the exercise or conversion of Company securities or other rights to receive securities of the CompanyCompany that exist as of the Closing Date, or (ii) the issuance of securities pursuant to an equity incentive plan, during the ninety (90) days following the Closing Date, the Company shall not undertake any public or private offerings of any equity securities of the Company without the written consent of the Representative, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Underwriting Agreement (Axion Power International, Inc.)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Shares and/or the Warrants from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer-Represented Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Class A Ordinary Shares from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. The Company will, from time to timetime in force, prepare and file by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the General Disclosure Package, the Registration Statement and the Prospectus. If during such statementsperiod any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, reports and other documents as are the General Disclosure Package ) would include an untrue statement of a material fact or may be required omit to continue such qualifications state a material fact necessary to make the statements therein, in effect for so long a period as the Placement Agent may reasonably request for distribution light of the Securities. The Company will advise circumstances under which such statements were made, not misleading, or if during such period it is necessary or appropriate in the Placement Agent promptly opinion of the suspension of Company or its counsel or the qualification Representative or registration of Underwriters’ Counsel to amend the Registration Statement or supplement the Prospectus (or any such exemption relating to) if the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus is not yet available to prospective purchasers, the Company shall use its best efforts General Disclosure Package ) to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(e) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, the Company has promptly notified or if it is necessary at any time to will promptly notify the Representative and has promptly amended or will promptly amend or supplement the Incorporated Documents supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or any Prospectus correct such conflict, untrue statement or to file under the Exchange Act any Incorporated Document to comply with any law, the omission.
(f) The Company will promptly prepare upon request deliver to the Underwriters and file with Underwriters’ Counsel a signed copy of the CommissionRegistration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith. The Company will promptly deliver to each of the Underwriters such number of copies (electronic or otherwise) of any Preliminary Prospectus, the Prospectus, the Registration Statement, and furnish at its own expense all amendments of and supplements to the Placement Agent such documents, if any, and to dealers, an appropriate amendment all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 a.m., not misleadingNew York time, or so that on the Registration Statement, Business Day next succeeding the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementdate of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(g) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(h) If the Company elects to rely on Rule 462(b) under the Securities Act, 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 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(i) The Company will use its commercially reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions, domestic or foreign, as the Representative may reasonably designate and to maintain such qualification in effect for so long as required for the distribution thereof, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction, to execute a general consent to service of process in any such jurisdiction, or to subject itself to taxation in any such jurisdiction if it is otherwise not so subject.
(j) The Company, on behalf of itself and any successor entity, has agreed that, pursuant to an executed Company lock-up agreement in the form attached hereto as Annex I (the “Company Lock-up Agreement”), that during the one-year period following the Closing Date (the “Company Lock-up Period”), the Company may not, without the prior written consent of the Representative, (A) offer, pledge, issue, sell, agree or contract to sell, encumber, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise dispose of, directly or indirectly, any shares of capital stock of the Company or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, (B) file or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, (C) complete any offering of debt securities of the Company, other than entering into a line of credit with a copy traditional bank, or (D) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (A), (B), (C) or (D) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise; provided, however, that clause (A) above shall not include (i) the Class A Ordinary Shares to be sold in the Offering, (ii) any Option Shares, (iii) any Ordinary Shares issued or options to purchase Ordinary Shares or other Ordinary Shares-based awards granted pursuant to any stock incentive plan, stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Effective Date), (iv) the issuance by the Company of Ordinary Shares pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding at the Effective Date (v) the issuance of Ordinary Shares in connection with strategic acquisitions, or (vi) transfers by a shareholder (1) by bona fide gift, (2) by will or intestacy to the spouse, parents, siblings, first cousins or any lineal descendant of such proposed amendment shareholder or supplement such shareholder’s spouse, including step relationships and relationships by adoption (each a, “family member”), (3) to any trust for the benefit of such shareholder or a family member of such shareholder, (4) to the estate of such shareholder, or (5) to any affiliate of such shareholder or by distribution to any partners, members or shareholders of such shareholder.
(k) Schedule II hereto contains a complete and accurate list of the Company’s executive officers and directors (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Annex II (the “Lock-Up Agreement”), prior to the execution of this Agreement. Pursuant to the Lock-Up Agreement, each of the Lock-Up Parties has agreed that for a period ending 180 days after the Closing Date, each such person and their respective affiliated parties shall not offer, pledge, sell, contract to sell, grant, lend or otherwise transfer or dispose of, directly or indirectly, any Securities or share capital of the Company, including Ordinary Shares, or any securities convertible into or exercisable or exchangeable for such Securities or share capital, without the consent of the Underwriter, with certain exceptions.
(l) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lock-Up Agreement described in Section 4(j) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by (i) a press release substantially in the form of Annex VI hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two (2) Business Days before the effective date of the release or waiver.
(m) For a period of one year from the Closing Date, the Company shall retain [ ] as the Company’s transfer agent and registrar for the Class A Ordinary Shares or a transfer and registrar agent for the Class A Ordinary Shares reasonably acceptable to the Representative.
(n) [Reserved].
(o) For a period of at least two (2) years from the Effective Date, the Company shall retain a nationally recognized PCAOB registered independent public accounting firm reasonably acceptable to the Representative. The Representative acknowledges that the Auditor is acceptable to the Representative.
(p) During the period of one (1) year from the Effective Date, the Company will make available to the Representative copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will not file deliver to the Representative: (i) as soon as practicable after they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request in writing pursuant to a specific regulatory or liability issue or; provided, that any such amendment item which is available on the E▇▇▇▇ system (or supplement to which the Placement Agent reasonably objectssuccessor thereto) need not be furnished in physical form.
5. During (q) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. Eastern Time on the first Business Day following the twenty-fifth (25th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(r) [Reserved].
(s) The Company will use its commercially reasonable efforts to apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Prospectus.
(t) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Class A Ordinary Shares on the Nasdaq Stock Market, the NYSE or the NYSE American for at least three (3) years after the Closing Date.
(u) The Company, during the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(v) The Company will use its commercially reasonable efforts to do and in the manner perform all things required to be done or performed under this Agreement by the Exchange ActCompany prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Shares.
6. (w) The Company will not take, and will use its commercially reasonable efforts to cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of the CompanyShares.
(x) The Company shall cause to be prepared and delivered to the Representative, at its expense, within two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transm
Appears in 1 contract
Sources: Underwriting Agreement (GrowHub LTD)
Covenants of the Company. 1. The In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:
(i) If the Registration Statement has delivered or made availablenot already been declared effective by the Commission, or the Company will as promptly as practicable deliver or make available, use its best efforts to the Placement Agent complete conformed copies of cause the Registration Statement and of each consent and certificate of experts, any post-effective amendments thereto to become effective as applicable, filed promptly as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither possible; the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent notify you promptly after it receives notice thereof of the time when the Registration Statement or any post-effective amendment to the Registration Statement has been filed or becomes become effective or any supplement to the Base Prospectus or (including any term sheet within the Prospectus Supplement meaning of Rule 434 under the Securities Act) has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission for any amendment or supplement to amend the Registration Statement or Prospectus or additional information; if the Company has elected to amend rely on Rule 430A under the Securities Act, the Company will prepare and file a Prospectus (or term sheet within the meaning of Rule 434 under the Securities Act) containing the information omitted therefrom pursuant to Rule 430A under the Securities Act with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if applicable, under the Securities Act; if the Company has elected to rely upon Rule 462(b) under the Securities Act to increase the size of the offering registered under the Securities Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b); the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 under the Securities Act) that, in your reasonable opinion, may be necessary or advisable in connection with the distribution of the Shares by the Underwriters; and the Company will not file any amendment or supplement to the Registration ----------------------
(1) Insert date three (3) business days (T+3) or, in the event the offering is priced after 4:30 p.m. Eastern Time (and T+4 settlement is deemed to apply to secondary sales), four (4) business days after the date of the Underwriting Agreement.
(2) Insert date five (5) business days after the date inserted in accordance with note 18 above.
(3) Insert date ten (10) business days after the expiration of the over-allotment option. Statement or Prospectus (including any Prospectus term sheet within the meaning of Rule 434 under the Securities Act) of which you shall not previously have been advised or for additional information, and which you shall reasonably object after being so advised by notice to the Company.
(ii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities Shares for offering or sale in any jurisdiction, or of the institution initiation or threatened institution threatening of any proceeding for any such purpose, or of any request by ; and the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall will promptly use its reasonable best efforts to prevent the issuance of any such stop order or prevention or suspension of to obtain its withdrawal if such use. If the Commission shall enter any such a stop order or order or notice should be issued.
(iii) Within the time during which a prospectus (including any term sheet within the meaning of prevention or suspension at any time, Rule 434 under the Company will use its best efforts Securities Act) relating to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts Shares is required to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply in all material respects with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and the rules and regulations of the Commission thereunderhereafter amended, so far as necessary to permit the completion continuance of sales of or dealings in the distribution of the Securities Shares as contemplated in this Agreement, by the Incorporated Documents provisions hereof and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, occurs that in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary Underwriters is required to amend or supplement be set forth in the Incorporated Documents or any Prospectus in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, as the case may be, not misleadingthen existing, or if during such period it is necessary at any time to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act, the Company will promptly prepare notify you and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement to the Registration Statement, Prospectus (at the Incorporated Documents or any Prospectus that is necessary in order expense of the Company) so as to make the statements in the Incorporated Documents Prospectus not misleading.
(iv) The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under the securities laws of such jurisdictions as you reasonably designate and any Prospectus to continue such qualifications in effect so long as so amended or supplemented, in required for the light distribution of the circumstances under which they were madeShares, as the case may be, not misleading, or so except that the Registration StatementCompany shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(v) The Company will furnish to you, the Incorporated Documents or any Prospectuswithout charge, as so amended or supplemented, will comply with law. Before amending three signed copies of the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of such proposed amendment or supplement the Registration Statement (without exhibits thereto) and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Periodfurnish to you in New York City, the Company will duly filewithout charge, on a timely basis, with the Commission and the Trading Market all reports and documents required prior to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.10:00 a.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availablecovenants with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, or the Company will as promptly as practicable deliver or make availableprepare the Prospectus setting forth the number of Preferred Shares covered thereby and their terms not otherwise specified in the preliminary prospectus, the Underwriters’ names, the price at which the Preferred Shares are to be purchased by the Placement Agent complete conformed copies of Underwriters from the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofCompany, and conformed copies of such other information as the Registration Statement (without exhibits), the Base Prospectus, Representatives and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material deem appropriate in connection with the offering and sale of the Securities pursuant Preferred Shares; 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 Placements other than Underwriters as many copies of the Transaction DocumentsProspectus as they shall reasonably request including, if requested by the Base Underwriters, in addition to or in lieu thereof, electronic copies of the Prospectus. The Company shall pay the required Commission filing fees relating to the Preferred Shares within the time required by Rule 456(b)(1) (i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(b) 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 Supplementis 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 (the “Prospectus Delivery Period”), the Registration StatementCompany will comply with the requirements of Rule 430B and will notify the Representatives immediately, copies and confirm the notice in writing, (i) of the documents incorporated by reference therein and any other materials permitted by transmittal to the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission for filing of the time when any amendment to the Registration Statement has been filed Statement, (ii) of the transmittal to the Commission for filing of any supplement or becomes effective amendment to the Prospectus or any supplement document to be filed pursuant to the Base Prospectus 1934 Act, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required documents incorporated or deemed to be filed incorporated by the Company with the Commission pursuant to Section 13(a)reference therein, 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (iiv) of any request by the Commission for any amendment to amend the Registration Statement or to amend any amendment or supplement any to the Prospectus with respect to the Preferred Shares or for additional informationinformation relating thereto, and (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of the Public Securities proceedings for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such that purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter and, if any such stop order or order or notice of prevention or suspension at any timeis issued, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with (c) During the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”, prior to amending or supplementing the Registration Statement (including any filing under Rule 462(b)), any event shall occur as a result preliminary prospectus or the Prospectus (including any amendment or supplement through incorporation by reference of whichany report filed under the 1934 Act), in the judgment of the Company or in will furnish to the opinion Representatives for review a copy of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend each such proposed amendment or supplement the Incorporated Documents a reasonable amount of time prior to such proposed filing or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were madeuse, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement or use any such prospectus to which counsel for the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.Underwriters shall reasonably
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company shall file the Prospectus Supplement(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and shall provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date, as amended in the opinion of counsel for the Representative, the Prospectus is no longer required by law to be delivered (or supplementedin lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in such quantities and at such places as connection with sales by an underwriter or dealer (the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute“Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative reasonably object within 36 hours of delivery thereof to the Representative and its counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the documents incorporated by reference therein and receipt of any other materials permitted by comments of, or requests for additional or supplemental information from, the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof Commission, (ii) of the time when and date of any filing of any post- effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any Prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any Prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeIssuer- Represented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Ordinary Shares from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will shall use its best all commercially reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will shall use its best all commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (1) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package, and the Registration Statement and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its best efforts counsel or the Underwriter or counsel to obtain the withdrawal thereof at Underwriter to amend the earliest possible moment.
4. The Company will Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act and or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company shall promptly notify the Underwriter and shall amend the rules and regulations Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Commission thereunder, Company) so as to permit the completion correct such statement or omission or effect such compliance.
(i) If at any time following issuance of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents an Issuer-Represented Free Writing Prospectus there occurred or any Prospectus (the “Prospectus Delivery Period”), any occurs an event shall occur or development as a result of which, which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement, the Statutory Prospectus or the Prospectus or included or would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent omitted or counsel for the Placement Agent, it becomes would omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may beprevailing at that subsequent time, not misleading, or if it is necessary at any time to the Company shall promptly notify the Underwriter and shall promptly amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawsupplement, the Company will promptly prepare and file with the Commission, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company shall promptly deliver to the Placement Agent Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and shall maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company shall promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company shall furnish the Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, 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 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company shall use all commercially reasonable efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions, domestic or foreign, as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company shall make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) For a period of six (6) months from the effective date of the Registration Statement, the Incorporated Documents Company may not sell or issue, or agree to sell or issue, any equity security (which, for the purposes of this paragraph, shall include Ordinary Shares, preferred stock, or any Prospectus similar security, regardless of how classified for accounting purposes) or security convertible, exercisable or exchangeable for an equity security, except for (i) securities issued to the sellers of an operating business in bona fide transactions that is necessary in order to make the statements result in the Incorporated Documents Company acquiring an operating business or other strategic transaction, provided that such transaction is not for the primary purpose of benefiting the affiliates of the Company or any of their respective affiliates or family members, and (ii) options to purchase Ordinary Shares issued to employees, directors and consultants of the Company (“Employee Options”). The maximum number of Employee Options that may be issued pursuant to (ii), above, is equal to 9% of the number Ordinary Shares outstanding immediately after the Closing ((i) and (ii), collectively, the “Exempt Issuances”).
(k) Except with respect to any Exempt Issuances, during the six (6) months following the Closing Date, without the consent of the Representative which shall not be unreasonably withheld, the Company shall not file any registration statement relating to the offer or sale of any of the Company’s securities, except Form S-8 filed with the Commission in connection with any Company stock incentive plan.
(l) Following the Closing Date, the Company and any Prospectus as so amended of the individuals listed on Schedules B-1 and B-2 hereto (collectively, the “Lock-Up Parties”) shall not sell or supplementedotherwise dispose of any securities of the Company, whether publicly or in a private placement during the period that their respective lock-up agreements are in effect. The Company shall deliver to the Representative the agreements of Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the light form attached hereto as Annex I-A with respect to the persons listed on Schedule B-I and Annex I-B with respect to the persons named on Schedule B-II.
(m) For a period of one (1) year from the circumstances under which they were made, as the case may be, not misleading, or so that effective date of the Registration Statement, the Incorporated Documents or any ProspectusCompany, as so amended or supplementedat its expense, will comply with law. Before amending shall, at the Registration Statement or supplementing Representative’s request, provide the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent Representative on a weekly basis with a copy of such proposed amendment or supplement the Company’s weekly transfer sheets from the previous week and will not file any such amendment or supplement to which the Placement Agent reasonably objectssecurities positions listings.
5. (n) If the Company fails to maintain the listing of its Ordinary Shares on a nationally recognized exchange, for a period of three (3) years from the effective date of the Registration Statement, the Company, at its expense, shall obtain and keep current a listing in the Standard & Poor’s Corporation Records Services or the ▇▇▇▇▇’▇ Industrial Manual; provided that ▇▇▇▇▇’▇ OTC Industrial Manual is not sufficient for these purposes.
(o) During the Prospectus Delivery Periodperiod of three (3) years from the effective date of the Registration Statement, the Company will duly fileshall make available to the Underwriters copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, on a timely basisand shall deliver to the Underwriters: (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Trading Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(p) The Company shall not issue press releases or engage in any other publicity relating to the Offering, without the Representative’ prior written consent, for a period ending at 5:00 p.m. Eastern time on the first business day following the fortieth (40th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business.
(q) Prior to the consummation of the Offering, the Company shall engage or continue to engage (for no less than two (2) years from the date of the Closing Date) a financial public relations firm mutually acceptable to the Company and the Representative. The Company further agrees to consult with the Representative as is customary within the securities industry prior to distribution to third parties of any financial information, news releases, and/or other publicity regarding the Company, its business, or any terms of the proposed Offering, it being agreed that the Company shall give the Representative no less than twelve (12) hours prior notice of any such distribution and a reasonable opportunity during or prior to such period to review the contents of the proposed distribution.
(r) The Company has or shall retain Continental Stock Transfer & Trust Company (or a transfer agent reasonably acceptable to the Representative) as transfer agent for the Securities and shall continue to retain such transfer agent (or a transfer agent reasonably acceptable to the Representative) for a period of three (3) years following the Closing Date.
(s) The Company has or shall retain ▇▇▇▇▇ Agents, LLC (or a financial printer of similar competence and quality) as financial printer for the Offering and shall continue to retain such financial printer for a period of 45 days following the Closing Date.
(t) The Company has or shall retain the Auditors (or other independent PCAOB registered public accounting firm reasonably acceptable to the Representative) as independent public accountants for the Company and shall continue to retain independent PCAOB registered public accountants of comparable quality for a period of three (3) years following the Closing Date.
(u) The Company shall apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the written consent of the Representative, no proceeds of the Offering may be used to pay outstanding loans from officers, directors or shareholders or to pay any accrued salaries or bonuses to any employees or former employees.
(v) The Company will obtain, within 60 days from Closing, and will use its good faith best efforts to maintain its key person life insurance in the amount of $1,000,000 each on the lives of ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ with an insurer rated at least AA or better in the most recent edition of “Best’s Life Reports” in full force and effect for a period of three (3) years from the Closing Date.”
(w) The Company shall use all commercially reasonable efforts to effect and maintain the listing of the Securities on the NASDAQ Capital Market for at least three (3) years after the Closing Date.
(x) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, shall use all reports and commercially reasonable efforts to file all documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(y) The Company shall use all commercially reasonable efforts to do and in the manner perform all things required to be done or performed under this Agreement by the Exchange ActCompany prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Firm Shares.
6. (z) The Company will shall not take, and shall cause its Affiliates, including the Selling Stockholders, not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.e
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Representative that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended or supplemented, in such quantities (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period 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 distribute, prior provide evidence satisfactory to the Closing Date, any offering material in connection with the offering and sale Representative of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2such timely filing. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representatives reasonably object within 36 hours of delivery thereof to the Representatives and Underwriters’ Counsel.
(c) After the date of this Agreement, the Company shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofProspectus, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d(iii) of the Exchange Act subsequent time and date that any post-effective amendment to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which they are listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) (i)During the Prospectus Delivery Period, the Company will cooperate comply in all material respects with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, in the judgment General Disclosure Package ) would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they such statements were made, as the case may be, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or any if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package ) to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Representative and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to the Registration Statementprospective purchasers, the Incorporated Documents General Disclosure Package) or any Prospectus that is necessary in order to make file such document (at the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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 expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Sources: Underwriting Agreement (Society Pass Incorporated.)
Covenants of the Company. 1. (a) The Company has delivered or made available, or covenants with each Underwriter as follows:
(i) The Company will as promptly as practicable deliver or make available, use its reasonable best efforts to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, cause the Registration Statement, copies of if not effective at the documents incorporated by reference therein Representation Date, and any other materials permitted amendment thereto, to become effective, as promptly as possible after the filing thereof and agrees to prepare the Prospectus in a form approved by the Securities Act.
2Underwriters. The Company will not file any amendment to the Registration Statement or amendment or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall reasonably object in writing after a reasonable opportunity to review such amendment or supplement. Subject to the foregoing sentences in this clause 4(a)(i), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or supplement to the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, or such supplement thereto, to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed therein and will provide evidence satisfactory to the Underwriters of such timely filing upon their request. The Company will promptly advise the Placement Agent promptly after it receives notice thereof of Underwriters (A) when the time Registration Statement, if not effective at the Representation Date, and any amendment thereto, shall have become effective, (B) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (C) when any amendment to the Registration Statement has shall have been filed or becomes effective or become effective, (D) of receipt of any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with comments from the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission for any amendment of or supplement to amend the Registration Statement or to amend or supplement any Prospectus or for any additional information, and (iiE) of the receipt by the Company of any notification of, or if the Company otherwise has knowledge of, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any post-effective amendment thereto or any order directed at any Incorporated Documentproceeding for that purpose, if any, or any amendment or supplement thereto or any order preventing or suspending the use (F) of the Base Prospectus or receipt by the final Prospectus or Company of any prospectus supplement or any amendment or supplement thereto or any post-effective amendment notification with respect to the Registration Statement, of the suspension of the qualification of any of the Public Securities Shares for offering or sale in any jurisdiction, of jurisdiction or the institution initiation or threatened institution threatening of any proceeding for such purpose and (G) when, prior to termination of the Offering of the Shares, any such purpose, or of any request document shall have been filed by the Commission for Company under the amending Act or supplementing of the Registration Statement Exchange Act or a Prospectus or for additional informationunder the rules and regulations promulgated thereunder. The Company shall will use its reasonable best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If and, if issued, to obtain promptly the Commission shall enter any such stop order or order or notice of prevention or suspension lifting thereof.
(ii) If, at any timetime when a prospectus relating to the Shares is required to be delivered under the Act or the Act Regulations in connection with the Offering of the Shares, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the Act or the Act Regulations, the Company promptly will prepare and file with the Commission, at the Company’s expense, an amendment or supplement which will correct such statement or omission or effect such compliance and will use its reasonable best efforts to obtain cause the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts same to have such new registration statement declared become effective as soon as practicable. Additionally; and, in case any Underwriter is required to deliver a prospectus after such time, the Company agrees that it upon request, but at the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus or Prospectuses as may be necessary to permit compliance with the requirements of the Act and the Act Regulations. Neither your consent to, nor your delivery of, any such amendment or supplement shall comply constitute a waiver of any of the conditions set forth in Section 7.
(iii) During such period when a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, will furnish to each Underwriter or mail to its order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents in each case as soon as available and in such quantities as such Underwriter may reasonably request, for the purposes contemplated by the Act.
(iv) The Company consents to the use of the Prospectus in accordance with the provisions of Rules 424(b), 430A, 430B the Act and 430C, as applicable, under with the Securities Act, including with respect to securities or blue sky laws of the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made jurisdictions in which the Shares are offered by the Company under Underwriters and by all dealers to whom Shares may be sold, both in connection with the Offering and for such Rule 424(b) are received in a timely manner period of time thereafter as the Prospectus is required by the Commission.
3. The Company will cooperate Act to be delivered in connection with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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 sales by any Underwriter 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4dealer. The Company will comply with all requirements imposed upon it by the Securities Act as the same may be amended so far as necessary to permit the continuance of sales of or dealing in the Shares in accordance with the provisions hereof and the Prospectus.
(v) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters a consolidated earnings statement or statements of the Company and the Subsidiaries covering a twelve-month period beginning with the first full calendar quarter following the Effective Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder (it being understood that such delivery requirements shall be deemed met by the Company’s compliance with the Company’s reporting requirements pursuant to the Exchange Act and the Exchange ActRules and Regulations).
(vi) The Company will (A) on or before the Closing Date, and deliver to the rules and regulations Underwriters copies of the Commission thereunderRegistration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, so as promptly upon the filing thereof, manually signed copies of each post-effective amendment, if any, to permit the completion Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the distribution foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (B) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Securities Preliminary Prospectus and Prospectus as contemplated in this Agreement, the Incorporated Documents you may reasonably request and any Prospectus. If (C) thereafter from time to time during the period in which a prospectus is required by law to be delivered in connection with by an Underwriter or dealer, likewise send to the distribution Underwriters as many additional copies of the Prospectus and as many copies of any Securities contemplated supplement to the Prospectus and of any amended Prospectus, filed by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense as you may reasonably request for the purposes contemplated by the Act.
(vii) During the 120 day period following the date of the Prospectus, the Company shall cause each new director elected or appointed to the Placement Agent Company’s Board of Directors and each executive officer hired by the Company, in each case who would be required to dealersfile statements of Beneficial Ownership in accordance with Section 16 of the Exchange Act, an appropriate amendment to enter into a Lock-Up Agreement which will terminate on the Registration Statement or supplement 121st day following the date of the Prospectus.
(viii) The Company will apply the net proceeds from the Offering, and the sale of the Shares to be sold by the Registration StatementCompany, in accordance with the Incorporated Documents or any Prospectus that is necessary in order to make the statements description set forth in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light “Use of Proceeds” section of the circumstances under which they were made, as Prospectus.
(ix) The Company will cooperate with the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus Underwriters and their counsel in connection with endeavoring to obtain and maintain the Placementqualification or registration, or exemption from qualification, of the Shares for offer and sale under the applicable securities laws of such states of the United States and other jurisdictions as the Underwriters may designate; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(x) The Company will furnish the Placement Agent with a copy of such proposed amendment or supplement not, and will not file permit any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus Delivery PeriodSubsidiary to, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeat any time, directly or indirectly, indirectly (A) take any action designed to cause or result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities security of the Company.Company to facilitate the sale or resale of any of the Shares or
Appears in 1 contract
Sources: Underwriting Agreement (Education Lending Group Inc)
Covenants of the Company. 1. (a) The Company has delivered hereby agrees to use reasonable best efforts (i) to maintain the listing or made available, quotation of the Common Stock on Nasdaq (or will such other trading market that the Company applies to have the Common Stock traded on) for so long as any Investor owns unregistered Securities that have not expired by their terms and (ii) as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to following the Closing Date, any offering material in connection with to secure the offering and sale listing of the Securities pursuant Common Shares and the Warrant Shares (subject to official notice of issuance) on such trading market.
(b) The Company shall file a Current Report on Form 8-K and press release disclosing the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies material terms of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2transactions 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 Placement Agent promptly after it receives notice thereof second business day following the date of this Agreement and the Form 8-K will be filed within the time prescribed by the regulations of the time when Commission.
(c) For so long as any amendment Investor holds unregistered Securities that have not expired by their terms, (i) the Company shall use its reasonable best efforts to timely file (or obtain extensions in respect thereof and file within the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly applicable grace period) all reports and any definitive proxy or information statements required to be filed by the Company with after the Commission date hereof pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required reports pursuant to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and 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 rules and regulations Warrant Shares under Rule 144.
(d) No claim will be made or enforced by the Company or, with the consent of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”)Company, any event shall occur as other person, that any Investor is an “acquiring person” under any control share acquisition, business combination, poison pill (including any distribution under a result of which, rights agreement) or similar anti-takeover plan or arrangement in the judgment of effect or hereafter adopted by the Company or in that any Investor could be deemed to trigger the opinion provisions of any such plan or arrangement by virtue of receiving Securities pursuant to this Agreement.
(e) The Company shall continue to reserve and keep available at all times through the earlier of the Placement Agent or counsel date on which all Warrants have been exercised in full and the expiration date of the Warrants, free of preemptive rights, a sufficient number of shares of Common Stock for the Placement Agent, it becomes necessary purpose of enabling the Company to amend or supplement issue the Incorporated Documents or Warrant Shares pursuant to any Prospectus in order to make the statements therein, in the light exercise of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file Warrants in accordance with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light terms of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsWarrants.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. 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.
Appears in 1 contract
Covenants of the Company. 1. The Company acknowledges, covenants and agrees with the Underwriters as follows:
(a) The Registration Statement and any amendments thereto have been declared effective and, if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has delivered or made available, or been used) pursuant to Rule 424(b) within the prescribed time period and will as promptly as practicable deliver or make available, provide evidence satisfactory to the Placement Agent complete conformed copies Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or such date as, in the opinion of Underwriters’ Counsel, the Prospectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided), in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), before amending or supplementing the Registration Statement and or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectussuch proposed amendment or supplement, and the Prospectus SupplementCompany shall not file any such proposed amendment or supplement to which the Underwriter reasonably objects within 36 hours of delivery thereof to the Underwriter and its counsel.
(c) After the date of this Agreement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor shall promptly advise the Underwriter in writing of (i) the receipt of any of its directors and officers has distributed and none of them will distributecomments of, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documentsor requests for additional or supplemental information from, the Base ProspectusCommission, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act.
2. The Company will advise the Placement Agent promptly after it receives notice thereof of (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Base Prospectus any prospectus or the Prospectus Supplement has been filed Prospectus, (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional informationbecomes effective, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any postIssuer-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposeRepresented Free Writing Prospectus, or of any request by proceedings to remove, suspend or terminate from listing the Commission Common Stock from any securities exchange upon which it is listed for the amending trading, or supplementing of the Registration Statement threatening or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The (d) During the Prospectus Delivery Period, the Company will cooperate comply as far as it is able with the Placement Agent and the Purchasers in endeavoring to qualify all requirements imposed upon it by the Securities for sale under the securities laws of such jurisdictions (United States Act, as now and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such documentshereafter amended, and furnish such information by the Rules and Regulations, 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 time in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purposeforce, 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.
4. The Company will comply with the Securities Act and by the Exchange Act, and the rules and regulations of the Commission thereunder, Act so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of which, in which the judgment Prospectus would include an untrue statement of the Company a material fact or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes omit to state a material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may bethen existing, not misleading, or if during such period it is necessary at any time or appropriate in the opinion of the Company or its counsel or the Underwriter or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents or any Prospectus to comply with the Securities Act or to file under the Exchange Act any Incorporated Document document which would be deemed to be incorporated by reference in the Prospectus in order to comply with any lawthe Securities Act or the Exchange Act, the Company will promptly prepare notify the Underwriter and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to will amend the Registration Statement or supplement the Prospectus or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(e) The Company will promptly deliver to the Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Incorporated Documents and any Prospectus as so amended or supplemented, in Company’s files manually signed copies of such documents for at least five (5) years after the light date of filing thereof. The Company will promptly deliver to each of the circumstances under which they were madeUnderwriters such number of copies of any Preliminary Prospectus, as the case may beProspectus, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectusand all amendments of and supplements to such documents, as so amended or supplementedif any, will comply with law. Before amending and all documents which are exhibits to the Registration Statement or supplementing the Incorporated Documents and Prospectus or any Prospectus in connection with amendment thereof or supplement thereto, as the PlacementUnderwriters may reasonably request. Before 10:00 a.m., Eastern time, on the Business Day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York, New York in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act; provided that such Preliminary Prospectus was filed with the Commission on or after September __, 2015.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., Eastern time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its best efforts, in cooperation with the Representative, at or before the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment domestic jurisdictions as the Representative may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or supplement and will to execute a general consent to service of process or to subject itself to taxation if it is otherwise not file any such amendment or supplement to which the Placement Agent reasonably objectsso subject.
5(i) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(1) Except with respect to (i) the issuance of securities pursuant to the exercise or conversion of Company securities or other rights to receive securities of the Company that exist as of the Closing Date, or (ii) the issuance of securities pursuant to an equity incentive plan, during the ninety (90) days after the Closing Date, the Company shall not undertake any public or private offerings of any equity securities of the Company without the written consent of the Representative, which consent shall not be unreasonably withheld.
(2) After the Closing Date, the individuals listed on Schedule B hereto (the “Lock-Up Parties”) shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement during the period that their respective lock-up agreements are in effect in violation of their respective lock-up agreements. The Company will deliver to the Representative the agreements of Lock-Up Parties to the foregoing effect before the Closing Date, which agreements shall be substantially in the form attached hereto as Annex I.
(k) If the Company fails to maintain the listing of its shares of Common Stock on a nationally recognized exchange, for a period of three (3) years after the effective date of the Registration Statement, the Company, at its expense, shall obtain and keep current a listing in the Standard & Poor’s Corporation Records Services or the ▇▇▇▇▇’▇ Industrial Manual; provided that ▇▇▇▇▇’▇ OTC Industrial Manual is not sufficient for these purposes.
(l) During the Prospectus Delivery Periodperiod of three (3) years after the effective date of the Registration Statement, the Company will duly filemake available to the Underwriters copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, on a timely basisand will deliver to the Underwriters: (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Trading Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(m) The Company will not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first Business Day after the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(n) As of the Closing, the Company shall have engaged a financial public relations firm mutually acceptable to the Company and the Representative, which firm may be changed after the first year without the consent of both the Company and Representative, which consent may not be withheld unreasonably. The terms and conditions of such engagement shall be reasonably determined by the Company.
(o) The Company will retain a transfer agent and warrant agent reasonably acceptable to the Representative for a period of three (3) years after the Closing Date, Pacific Stock Transfer Company being reasonably acceptable to the Representative.
(p) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the written consent of the Representative, no proceeds of the Offering will be used to pay principal on outstanding loans from officers, directors or stockholders.
(q) The Company will use its best efforts to effect and maintain the listing of the Securities on the Nasdaq Capital Market or other national securities exchange for at least three (3) years after the Closing Date, except as a result of a transaction approved by the holders of a majority of the shares of the Common Stock of the Company issued and outstanding immediately prior to any such transaction.
(r) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(s) The Company will use its best efforts to do and in the manner perform all things required to be done or performed under this Agreement by the Exchange ActCompany before the Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
6. (t) The Company will not take, and will cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of the CompanySecurities.
(u) The Company shall cause to be prepared and delivered to the Representative, at its expense, within one (1) Business Day after the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for on-line time).
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availablecovenants with each Underwriter that:
(a) As soon as reasonably possible after the execution and delivery of this Agreement, or the Company will as 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 and make any other required filings pursuant to Rule 433 under the Securities Act. Upon request, the Company will promptly as practicable deliver or make availableto the Representative and to counsel for the Underwriters, to the Placement Agent complete extent not previously delivered, one fully executed copy or one conformed copies copy, certified by an officer of the Company, of the Registration Statement 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 of experts, as applicable, included therein or filed as a part thereofan exhibit thereto, and will deliver to the Representative for distribution to the Underwriters as many conformed copies of the Registration Statement foregoing (without excluding the exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places but including all documents incorporated therein) as the Placement Agent Representative may reasonably requestsrequest. Neither the The Company nor any of its directors and officers has distributed and none of them will distribute, prior also send to the Closing Date, any offering material in connection with Underwriters as soon as practicable after the offering date of this Agreement and sale of the Securities pursuant thereafter from time to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, time as many copies of the documents incorporated by reference therein Prospectus and any other materials permitted the Preliminary Prospectus as the Representative may reasonably request for the purposes required by the Securities Act.
2. The Company will advise (b) During such period (not exceeding nine months) after the Placement Agent promptly after it receives notice thereof commencement of the time when any amendment offering of the Securities as the Underwriters may be required by law to the Registration Statement has been filed deliver a Prospectus (or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies in lieu thereof, the parties acknowledging that such obligation is satisfied by filing such materials on notice referred to in Rule 173(a) under the ▇▇▇▇▇ system Securities Act), if any event relating to or affecting the Company, or of which the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to shall be filed advised in writing by the Company Representative shall occur, which in the Company’s reasonable opinion (after consultation with counsel for the Commission pursuant Representative) should be set forth in a supplement to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date an amendment of the Prospectus Supplement and for so long as in order to make the delivery Prospectus not misleading in the light of the circumstances when it is delivered to a prospectus purchaser (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), or if it is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission necessary to amend the Registration Statement or Prospectus to amend or supplement any Prospectus or for additional information, and (ii) of comply with the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeAct, the Company will use forthwith at its best efforts to obtain the lifting of such order at the earliest possible momentexpense prepare, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B Commission and 430C, as applicable, under the Securities Act, including with respect furnish to the timely filing of documents thereunder, Underwriters and will use its best efforts to confirm that any filings made dealers named by the Company under such Rule 424(b) are received in Representative a timely manner by reasonable number of copies of a supplement or supplements or an amendment or amendments to the Commission.
3. The Company Prospectus that will cooperate with supplement or amend the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) Prospectus so that as the Placement Agent and the Purchasers may reasonably request 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 supplemented or to file a general consent to service of process in any jurisdiction where amended it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations will not contain any untrue statement of the Commission thereunder, so as a material fact or omit to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and state any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes material fact necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as when the case may beProspectus is delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) 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 supplements or amendments to the Prospectus, complying with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its 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 earnings statement (in form complying with the provisions of Section 11(a) of the Securities 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 Company’s fiscal quarter next following the filing of the Prospectus pursuant to Rule 424.
(d) The Company will use commercially reasonable efforts promptly to do and perform all things to be done and performed by it is necessary at any time hereunder prior to amend or supplement the Incorporated Documents or any Prospectus or Closing Date and to file under satisfy all conditions precedent to the Exchange Act any Incorporated Document to comply with any lawdelivery by it of the Securities.
(e) As soon as reasonably possible after the Closing Date, the Company will promptly prepare cause the Forty-Eighth Supplemental Indenture to be recorded (i) 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 and file (ii) with the CommissionSurface Transportation Board.
(f) The Company will advise the Representative, or the Representative’s counsel, promptly of the filing of the Prospectus pursuant to Rule 424 and furnish at its own expense of any amendment or supplement to the Placement Agent 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 commercially reasonable efforts to obtain the prompt removal thereof.
(g) The Company will use commercially reasonable efforts to qualify the Securities, as may be required, for offer and sale under the Blue Sky or legal investment laws of such jurisdictions as the Representative may designate and will 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 dealersqualify as a foreign corporation or dealer in securities, an appropriate or to file any general consents to service of process, under the laws of any jurisdiction.
(h) Prior to the termination of the offering of the Securities, the Company will not file any amendment to the Registration Statement or supplement to the Registration Statement, Pricing Prospectus or the Incorporated Documents Prospectus which shall not have previously been furnished to the Representative or any Prospectus that is necessary in order to make of which the statements in the Incorporated Documents and any Prospectus as so amended Representative shall not previously have been advised or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent Representative shall reasonably objects.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission object in writing and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required which has not been approved by the Exchange Act.
6. The Company will not take, directly Underwriter(s) 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 their counsel acting on behalf of the price of any securities of the CompanyUnderwriters.
Appears in 1 contract
Covenants of the Company. 1. The In further consideration of the agreements of the Underwriter herein contained, the Company has delivered or made available, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of Underwriter that:
(a) If any information shall have been omitted from the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by reliance upon Rule 430A under the Securities Act, the Company will prepare and timely file with the Commission pursuant to Rule 424(b) under the Securities Act a Prospectus in a form approved by the Underwriter containing the Rule 430A Information.
2. (b) The Company will advise the Placement Agent promptly after it receives notice thereof of Underwriter and counsel to the time Underwriter promptly, and, if requested by the Underwriter, will confirm such advice in writing: (i) if information shall have been omitted from the Registration Statement in reliance on Rule 430A under the Securities Act, (ii) when the Prospectus or term sheet (as described in Rule 434(b) under the Securities Act) has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) when any post-effective amendment to the Registration Statement has been or any Rule 462 Registration Statement is filed or becomes effective or any supplement to under the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement Agent with copies thereofSecurities Act, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (iiv) of any request by the Commission for amendments or supplements to amend the Registration Statement Statement, any Preliminary Prospectus, or to amend or supplement any Prospectus the Prospectus, or for additional information, and (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, notification of the suspension of the qualification of any or registration of the Public Securities Shares for offering offer or sale in any jurisdiction, of jurisdiction or the institution initiation or threatened institution threatening of any proceeding proceedings for such purposes. If at any such purpose, or of any request by time the Commission for shall issue any stop order suspending the amending or supplementing effectiveness of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any timeProspectus, the Company will use its best efforts make every reasonable effort to obtain the lifting withdrawal of such order at the earliest possible momenttime.
(c) The Company will not file any amendment to the Registration Statement (including any post-effective amendment), file any Rule 462(b) Registration Statement, or make any amendment or supplement to the Prospectus, or file any amendment or supplement to any of the Applications if: (i) the Underwriter shall not have been previously advised of such filing, been furnished with a copy thereof prior thereto, and given reasonable opportunity to review such amendment or supplement, (ii) the Underwriter shall reasonably object after having been so advised, or (iii) in the case of a Registration Statement, Rule 462(b) Registration Statement, or Prospectus, such amendment or supplement is not in compliance with the Securities Act. The Company will prepare and file a new registration statement with the Commission any amendments or supplements which, in the opinion of counsel for the Underwriter, is necessary and use advisable in connection with the distribution of the Shares by the Underwriter.
(d) The Company will furnish to the Underwriter, without charge, eight (8) signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as the Underwriter may reasonably request. The Company has delivered to the Underwriter, without charge, in such quantities as the Underwriter has requested, copies of each form of the Preliminary Prospectus. The Company confirms its best efforts consent to have such new registration statement declared effective as soon as practicable. Additionallythe use, the Company agrees that it shall comply in accordance with the provisions of Rules 424(b)the Securities Act and with the securities or Blue Sky Laws of the jurisdictions in which the Shares are or have been offered by the Underwriter and by dealers, 430Aprior to the date of the Prospectus, 430B of each Preliminary Prospectus so furnished by the Company.
(e) The Company will furnish to the Underwriter in Naples, Florida, without charge, prior to 10:00 a.m., Eastern Standard Time on the business day next succeeding the date of this Agreement and 430Cthereafter from time to time for such period as in the opinion of counsel for the Underwriter a prospectus is required by law to be delivered in connection with sales by the Underwriter or a dealer, as applicablemany copies of the Prospectus and the Registration Statement, under and of any amendment or supplement thereto, as the Underwriter may reasonably request. The Company shall comply with all requirements imposed on it by the Securities Act, including with respect as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the completion of the distribution of the Shares as contemplated by this Agreement and the Registration Statement and the Prospectus. If, during the period in which the Prospectus is required by law to be delivered by the Underwriter or a dealer, any event shall occur or condition exist as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel to the timely filing of documents thereunderUnderwriter, it is necessary to amend or supplement the Prospectus to comply with the Securities Act or applicable law, the Company promptly will prepare and file with the Commission an appropriate amendment or supplement thereto, and, will use its best efforts furnish to confirm that any filings made the Underwriter and to each dealer to which Shares may have been sold by the Company under such Rule 424(b) are received in a timely manner by Underwriter and to any other dealers upon request, without charge, as many copies as the CommissionUnderwriter may from time to time request.
3. (f) The Company will cooperate make generally available to its security holders a consolidated earnings statement, which need not be audited, as soon as it is practicable to do so, but in any event not later than fifteen (15) months after the effective date of the Registration Statement, covering a period of twelve (12) consecutive calendar months beginning after the effective date of the Registration Statement, which consolidated earnings statement will satisfy the provisions of the last paragraph of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations promulgated thereunder and will advise the Underwriter in writing when such statement has been so made available.
(g) The Company shall take or cause to be taken in cooperation with the Placement Agent Underwriter and counsel to the Purchasers in endeavoring Underwriter all actions required to register or qualify the Securities Shares for offer and sale under the securities laws or Blue Sky Laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers Underwriter may reasonably request designate and will make such applications, file such documents, and furnish such information as may be reasonably required for that purposepurpose (provided, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to the service of process in any jurisdiction where it is not now so qualified or required to file such a consent, except with respect to the offer and provided further that sale of the Company shall not be required Shares), and will continue such registrations or qualifications in effect so long as reasonably requested by the Underwriter to produce any new disclosure document. The Company willeffect the distribution of the Shares (including, from time to timewithout limitation, prepare the preparation and file filing of such statements, reports and other reports, or documents as are or may be so required and compliance with all undertakings given pursuant to continue such qualifications in effect for so long a period as registrations or qualifications). In the Placement Agent may reasonably request for distribution event that the registration or qualification of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading Shares in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionis suspended, the Company shall use its best efforts to obtain so advise the withdrawal thereof at the earliest possible momentUnderwriter in writing.
4. The (h) During the period ending five years after the date of this Agreement, the Company will comply furnish to the Underwriter: (i) as soon as practicable after the end of each fiscal year, copies of the annual report containing the consolidated audited financial statements of the Company, (ii) as soon as available, a copy of each report, document, and definitive proxy or information statement furnished to or filed with any securities exchange or the NASD (including the Nasdaq Stock Market, Inc., or any successor thereto) pursuant to the requirements of such exchange or the NASD, or with the Commission under the Securities Act and or the Exchange Act, and the rules and regulations (iii) copies of all other information or communications (financial or other) furnished to shareholders of the Commission thereunder, so as to permit Company.
(i) The Company shall apply the completion proceeds from the sale of the distribution Shares to be sold by it hereunder as set forth in the Prospectus under the heading "Use of Proceeds" shall file with the Commission, and will furnish or cause to be furnished to the Underwriter and counsel to the Underwriter, such reports as may be required in accordance with Rule 463 under the Securities Act.
(j) Except for the sale of Common Shares pursuant to this Agreement and except as disclosed in the Prospectus, neither the Company nor any Subsidiary shall, directly or indirectly, offer, sell, pledge, contract to sell, issue, distribute, grant or sell any option, right, or warrant to purchase or otherwise dispose of any Common Shares or securities convertible into, or exercisable, or exchangeable for, Common Shares or a derivative of the Common Shares (or an agreement for such) in the open market or otherwise, for a period of one-hundred eighty days (180) days after the later of the Effective Date or the date of this Agreement, without the express prior written consent of the Underwriter.
(k) The Company will not, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in or constitute, under the Securities as contemplated in 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) The Company has (i) caused each director, officer, and current shareholder of the Company and each Subsidiary to furnish to the Underwriter, on or before the date of this Agreement, the Incorporated Documents Lock-Up Agreements, and any Prospectus. If during (ii) issued stop-transfer instructions to the transfer agent for the Common Shares with respect to the Common Shares that are or will be subject to such Lock-Up Agreements, which stop-transfer instructions shall restrict the transfer of such shares prior to expiration of the 180-day period specified in the Lock-Up Agreements.
(m) The Company will file a registration statement under the Exchange Act to register the Common Shares thereunder as of the Effective Date, and will comply with all registration, filing, and reporting requirements of the Exchange Act which may from time to time be applicable to the Company.
(n) During the period in which that a prospectus is required by law to be delivered in connection with sales of the distribution of any Securities contemplated Shares by the Incorporated Documents Underwriter or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawdealer, the Company will promptly prepare and file not, directly or indirectly hold any press conference with respect to the Company, or its financial condition, results of operations, business, properties, assets, or prospects, or this offering, without the express written consent of the Underwriter.
(o) The Company shall not invest or otherwise cause the use of proceeds received by the Company from its sale of the Shares, or otherwise conduct its business, in such a manner as would require Company or any Subsidiary to register as an investment company under the Investment Company Act of 1940, as amended.
(p) The Company will not prior to the Second Closing Date, if any, (i) except as specifically described in the Prospectus, acquire any of the Common Shares, or declare or pay any dividend or make any other distribution upon its Common Shares payable to shareholders of record on a date prior to the Second Closing Date, or (ii) incur any material liability or obligation, direct or contingent, or enter into any material transaction other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-B under the Securities Act.
(q) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Shares.
(r) In connection with the CommissionDirected Shares Program, and furnish at its own expense the Company will ensure that the Directed Shares will be restricted to the Placement Agent and extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge, or hypothecation for a period of three months following the Effective Date. The Underwriter will notify the Company as to dealers, an appropriate amendment which Participants are required to be restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(s) The Company shall comply in all respects with the provisions of all undertakings contained in the Registration Statement or supplement to and the Registration Statement, undertakings given by the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus Company in connection with the Placement, registration or qualification of the Company will furnish Shares for offering and sale under the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objectsBlue Sky Laws.
5. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. (t) The Company will not take, directly use its best efforts to satisfy or indirectly, any cause to be satisfied the conditions to the obligations of the Underwriter in Section 7 hereof.
(u) The Company shall deliver the requisite notice of issuance to the NASD and shall take all necessary and appropriate action designed to cause or result inpermit the quotation and listing of the Common Shares on the OTC Bulletin Board for a period of at least 36 months, except to the extent during such period that the Common Shares are listed on a national securities exchange or the Nasdaq Stock Market.
(v) The Company will advise the Underwriter promptly of and, when applicable, furnish copies of, any communications with the FRB, OCC, or that has constituted FDIC relating to the Applications or might reasonably be expected the Regulatory Approvals.
(w) The Company shall supply the Underwriter and counsel to constitutethe Underwriter, at the stabilization or manipulation Company's cost, with three bound volumes of the price of any securities Underwriting materials within a reasonable time after the last of the CompanyClosing Dates.
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made available, or agrees that:
(a) The Company will as promptly as practicable deliver or make available, to file the Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the final Prospectus Supplement, 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 distribute, prior to the Closing Date, any offering material in connection with the offering Commission within the time periods specified by Rule 424(b) and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by Rule 430B under the Securities Act.
2. The Company ; will advise prepare a final term sheet, substantially in the Placement Agent promptly after it receives notice thereof form of Schedule VI hereto (the time when Final Term Sheet) and file such Final Term Sheet in compliance with Rule 433(d) under the Securities Act; will file any amendment Issuer Free Writing Prospectus to the Registration Statement has been filed or becomes effective or any supplement to extent required by Rule 433 under the Base Prospectus or the Prospectus Supplement has been filed Securities Act; and will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file 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 after the date of the Prospectus Supplement and within the Prospectus Delivery Period. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(i) under the Securities Act and, in any event, prior to the Closing Date.
(b) If the Representatives so long request, the Company, on or prior to the Closing Date, will deliver to the Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to each such document, in each case as soon as available and in such quantities as are reasonably requested by the Representatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to any such documents that are not electronically available through the Commission’s ▇▇▇▇▇ filing system.
(c) The Company will pay all expenses in connection with (i) the preparation and filing by it of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus, (ii) the preparation, issuance and delivery of a prospectus is required the Junior Subordinated Notes, (iii) any fees and expenses of the Trustee and (iv) the printing and delivery (by first class mail) to the Underwriters, in reasonable quantities, of copies of the Registration Statement, any Preliminary Prospectus, the Final Term Sheet, any Issuer Free Writing Prospectus and the Prospectus (each as originally filed and as subsequently amended). In addition, the Company will pay the reasonable out-of-pocket fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in connection with the Placement. The Company will advise qualification of the Placement Agent, promptly after it receives notice thereof Junior Subordinated Notes under state securities or blue sky laws or investment laws (i) of any request if and to the extent such qualification is required by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus Underwriters or the final Prospectus or any Company).
(d) If, during the time when a prospectus supplement or any amendment or supplement thereto or any post-effective amendment relating to the Registration Statement, of the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts Junior Subordinated Notes is required to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, be delivered under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur occurs as a result of whichwhich (i) the Prospectus, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents Final Term Sheet or any Issuer Free Writing Prospectus in order 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, as the case may be, not misleading, or if ; (ii) it is necessary at any time to amend or supplement the Incorporated Documents Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus or to file under the Exchange Act any Incorporated Document to comply with any lawthe Securities Act or (iii) the information contained in an Issuer Free Writing Prospectus conflicts with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company promptly will promptly (y) notify the Underwriters through the Representatives to suspend solicitation of purchases of the Junior Subordinated Notes and (z) at its expense, prepare and file with the CommissionCommission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and furnish at its own expense file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Placement Agent Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. Any such documents or amendments which are electronically available through the Commission’s ▇▇▇▇▇ filing system shall be deemed to dealers, an appropriate amendment have been furnished by the Company to the Representatives and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP.
(e) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement the Prospectus and will afford the Representatives a reasonable opportunity to the Registration Statement, the Incorporated Documents or comment on any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement prior to filing; and the Company will not file also advise the Representatives promptly of the filing of any such amendment or supplement, of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, or of receipt from the Commission of any notice of objection to the use of the Registration Statement or any supplement or amendment thereto pursuant to which Rule 401(g)(2) under the Placement Agent reasonably objectsSecurities Act, and will use its best efforts to prevent the issuance of any such stop order or any such notice of objection and to obtain as soon as possible their lifting, if issued.
5. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement of the Company (in reasonable detail, in form complying with the provisions of Rule 158 under the Securities Act and which need not be audited), covering a period of at least 12 months beginning within three months after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act.
(g) The Company will furnish such information as may be lawfully required and otherwise cooperate in qualifying the Junior Subordinated Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Company shall not be required in any state to qualify as a foreign corporation, or to file a general consent to service of process, or to submit to any requirements which it deems unduly burdensome.
(h) Fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who is acting as counsel for the Underwriters, (exclusive of fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP which are to be paid as set forth in Section 6(c)) shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 7 or 8 hereof, the Company shall reimburse the Representatives for the account of the Underwriters for the amount of such fees and disbursements.
(i) During the Prospectus Delivery Periodperiod beginning on the date of this Agreement and continuing to and including the Closing Date, the Company will duly filenot, on a timely basis, with without the Commission and prior written consent of the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not takeRepresentatives, directly or indirectly, any action designed sell or offer to cause sell or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price otherwise dispose of any Junior Subordinated Notes or any security convertible into or exchangeable for Junior Subordinated Notes or any debt securities of substantially similar to Junior Subordinated Notes (except for the CompanyJunior Subordinated Notes issued pursuant to this Agreement).
Appears in 1 contract
Sources: Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the General Disclosure Package or the Prospectus, the Company shall furnish to the Representative and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActRepresentative reasonably objects within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus General Disclosure Package or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus or General Disclosure Package, the final Prospectus or any prospectus supplement Issuer-Represented Free Writing Prospectus, or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Common Stock or the Public Securities Warrants from any securities exchange upon which the Common Stock is listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its reasonable best efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended, and by the rules Rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents General Disclosure Package, the Registration Statement and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Representative or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Representative and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus would conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Representative and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The Company will promptly deliver to the Placement Agent Representative and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were madethereto, as the case Underwriters may bereasonably request. Prior to 10:00 A.M., not misleadingNew York City time, or so that on the Registration StatementBusiness Day next succeeding the date of this Agreement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placementand from time to time thereafter, the Company will furnish the Placement Agent Underwriters with copies of the Prospectus in New York City in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(g) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a copy Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 P.M., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such proposed amendment jurisdictions, domestic or supplement foreign, as the Representative may designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the ▇▇▇▇▇ system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s stock option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Representative, which shall not be unreasonably withheld.
(k) Following the Closing Date, the Company and any of the individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Representative, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during the period that their respective lock-up agreements are in effect. The Company will deliver to the Representative the agreements of the Lock-Up Parties to the foregoing effect prior to the Closing Date, which agreements shall be substantially in the form attached hereto as Annex II.
(l) [Intentionally omitted.]
(m) [Intentionally omitted.]
(n) The Company will not file issue press releases or engage in any other publicity without the Representative’s prior written consent, for a period ending at 5:00 P.M. Eastern time on the first Business Day following the forty-fifth (45th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(o) The Company shall use its reasonable best efforts to engage, by the Closing Date (and for no less than two (2) years following the Closing Date) ▇▇▇▇ ▇▇▇▇▇▇▇ International as its financial public relations firm. The terms and conditions of such engagement shall be reasonably determined by the Company. The Company further agrees to consult with the Representative as is customary within the securities industry prior to the distribution to third parties of any financial information, news releases, or other publicity regarding the Offering, it being agreed that the Company shall give the Representative no less than twelve (12) hours prior notice of any such amendment distribution and a reasonable opportunity during or supplement prior to which such period to review the Placement Agent reasonably objectscontents of the proposed distribution.
5(p) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus. Without the prior written consent of the Representative, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no proceeds of the Offering will be used to pay outstanding loans from officers, directors or stockholders or to pay any accrued salaries or bonuses to any employees or former employees.
(q) The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock and the Public Warrants on the NASDAQ Capital Market for at least three (3) years after the Effective Date, unless such listing is terminated as a result of a transaction approved by the holders of a majority of the voting securities of the Company. If the Company fails to maintain such listing of its Common Stock or Warrants, on the NASDAQ Capital Market or other Trading Market, for a period of three (3) years from the Effective Date, the Company, at its expense, shall obtain and keep current a listing of such securities in the Standard & Poor’s Corporation Records Services or Mergent’s Industrial Manual; provided that Mergent’s OTC Industrial Manual is not sufficient for these purposes.
(r) During the period when the Prospectus Delivery Periodis required to be delivered under the Securities Act and for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding, the Company will duly file, on a timely basis, with the Commission and the Trading Market file all reports and documents required to be filed under with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(s) The Company shall use its best efforts to maintain the effectiveness of the Registration Statement and a current Prospectus relating thereto for as long as the Firm Warrants, the Option Warrants and the Underwriters’ Warrants remain outstanding. During any period when the Company fails to have maintained an effective Registration Statement or a current Prospectus relating thereto and a holder of a Firm Warrant, Option Warrant or Underwriters’ Warrant desires to exercise such warrant and, in the manner required opinion of counsel to the holder, Rule 144 is not available as an exemption from registration for the resale of the shares of Common Stock underlying such warrant (such shares, the “Warrant Shares”), the Company shall immediately file a registration statement registering the resale of the Warrant Shares and use its best efforts to have it declared effective by the Exchange ActCommission within thirty (30) days.
6. (t) The Company will use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Securities.
(u) The Company will not take, and will cause its Affiliates not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any Securities.
(v) The Company shall cause to be prepared and delivered to the Representative, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the Companyfollowing conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Securities Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 1 contract
Covenants of the Company. 1. The Company has delivered or made availableacknowledges, or will as promptly as practicable deliver or make available, to covenants and agrees with the Placement Agent complete conformed copies of the Underwriters that:
(a) The Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereofany amendments thereto have been declared effective, and conformed copies if Rule 430A is used or the filing of the Registration Statement (without exhibitsProspectus is otherwise required under Rule 424(b), the Base Prospectus, and Company will file the Prospectus Supplement, as amended (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing.
(b) During the period beginning on the date hereof and ending on the later of the Closing Date or supplementedsuch date as, in such quantities and at such places as the Placement Agent reasonably requests. Neither reasonable opinion of Underwriters’ Counsel, the Company nor any of its directors and officers has distributed and none of them will distributeProspectus is no longer required by law to be delivered (or in lieu thereof the notice referred to in Rule 173(a) under the Act is no longer required to be provided) in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to the Closing Date, any offering material in connection with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, amending or supplementing the Registration Statement, copies the Disclosure Materials or the Prospectus, the Company shall furnish to the Underwriters and Underwriters’ Counsel for review a copy of each such proposed amendment or supplement, and the documents incorporated by reference therein and Company shall not file any other materials permitted by such proposed amendment or supplement to which the Securities ActUnderwriters reasonably object within 36 hours of delivery thereof to Underwriters’ Counsel.
2. The (c) After the date of this Agreement, the Company will shall promptly advise the Placement Agent promptly after it receives notice thereof Underwriters in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when and date of any filing of any post-effective amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to any prospectus, the Base Prospectus Disclosure Materials, or the Prospectus Supplement has been filed Prospectus; (iii) the time and will furnish the Placement Agent with copies thereof, the parties acknowledging date that such obligation is satisfied by filing such materials on the ▇▇▇▇▇ system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required post-effective amendment to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, becomes effective; and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or of any order preventing or suspending its use or the use of any prospectus, the Base Prospectus Disclosure Materials, the Prospectus, or the final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification initiation of any of proceedings to remove, suspend or terminate from listing the Public Securities Shares from any securities exchange upon which the Shares are listed for offering or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purposetrading, or of any request by the Commission for the amending or supplementing threatening of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance initiation of any such stop order or prevention or suspension proceedings for any of such usepurposes. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company will use its best reasonable efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B 430A and 430C430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, Act and will use its best reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are or Rule 433 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
3. The Company will cooperate with (i) During the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request 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, and provided further that the Company shall not be required to produce any new disclosure document. 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 Placement Agent may reasonably request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemptionProspectus Delivery Period, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now in effect and as may be hereafter amended, and by the rules and regulations of the Commission thereunderRegulations, as from time to time in force, so far as necessary to permit the completion continuance of the distribution sales of or dealings in the Securities as contemplated in this Agreementby the provisions hereof, the Incorporated Documents Registration Statement, Disclosure Materials, and any the Prospectus. If during the such period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur or development occurs as a result of whichwhich the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the judgment light of the Company circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Placement Agent Company or its counsel for or the Placement Agent, it becomes necessary Underwriters or Underwriters’ Counsel to amend the Registration Statement or supplement the Incorporated Documents Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) to comply with the Act, the Company will promptly notify the Underwriters and will promptly amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Disclosure Materials) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus or would include an untrue statement of a material fact or would 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, as the case may bethere existing, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare notify the Underwriters and file with the Commissionwill promptly amend or supplement, and furnish at its own expense expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(iii) The Company shall continually comply with the applicable PRC laws and regulations governing the Company’s listing on an exchange not in the PRC, rectify or cure any non-compliance, and implement and maintain content control and other measures in continuing compliance with the applicable PRC laws and regulations.
(e) The Company will deliver to the Placement Agent Underwriters and Underwriters’ Counsel a copy of the Registration Statement, as initially filed, and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least three (3) years after the date of filing thereof. The Company will promptly deliver to dealerseach of the Underwriters such number of copies of any Preliminary Prospectus, an appropriate amendment the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and any Preliminary Prospectus or Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. On the Business Day next succeeding the date of this Agreement, and from time to time thereafter, the Company will furnish to the Underwriters copies of the Prospectus in such quantities as the Underwriters may reasonably request.
(f) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Act.
(g) If the Company elects to rely on Rule 462(b) under the Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by the earlier of: (i) 10:00 P.M., Eastern Time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2), and pay the applicable fees in accordance with Rule 111 of the Act.
(h) The Company will use its reasonable best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Securities for offering and sale under the securities laws relating to the offering or sale of the Securities of such jurisdictions as the Underwriters may reasonably designate and to maintain such qualifications in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to taxation if it is otherwise not so subject.
(i) The Company will make generally available (which includes filings pursuant to the Exchange Act made publicly through the Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) system) to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Regulations.
(j) Except with respect to (i) securities of the Company which may be issued in connection with an acquisition of another entity (or the assets thereof), (ii) the issuance of securities of the Company intended to provide the Company with proceeds to acquire another entity (or the assets thereof), or (iii) the issuance of securities under the Company’s share option plans with exercise or conversion prices at fair market value (as defined in such plans) in effect from time to time, during the three (3) months following the Closing Date, the Company or any successor to the Company shall not undertake any public or private offerings of any equity securities of the Company (including equity-linked securities) without the prior written consent of the Underwriters, which consent shall not be unreasonably withheld.
(k) Starting from the commencement of sales of this Offering, any of the entities and individuals listed on Schedule B hereto (the “Lock-Up Parties”), without the prior written consent of the Underwriters, shall not sell or otherwise dispose of any securities of the Company, whether publicly or in a private placement, during their respective lock-up period in the lock-up agreements that are in effect. The Company will deliver to the Underwriters the agreements of the Lock-Up Parties to the foregoing effect on the date of this Agreement, which agreements shall be substantially in the form attached hereto as Annex IV.
(l) The Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, for a period ending at 5:00 P.M., Eastern time, on the first Business Day following the twenty-fifth (25th) day following the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, or as required by law.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption “Use of Proceeds” in the Prospectus in all material respects. Without the prior written consent of the Underwriters, except as disclosed in the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make Disclosure Materials, and the statements in the Incorporated Documents and any Prospectus as so amended or supplementedProspectus, in the light no proceeds of the circumstances under which they were madeOffering will be used to pay outstanding loans from officers, as the case may be, not misleading, directors or so that the Registration Statement, the Incorporated Documents shareholders or to pay any Prospectus, as so amended accrued salaries or supplemented, will comply with law. Before amending the Registration Statement bonuses to any employees or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the former employees.
(n) The Company will furnish use its reasonable best efforts to effect and maintain the Placement Agent with listing of the Shares on the Nasdaq Capital Market for at least three (3) years after the commencement of sales of this offering, unless such listing is terminated as a copy result of such proposed amendment or supplement and will not file any such amendment or supplement to which a transaction approved by the Placement Agent reasonably objectsholders of a majority of the voting securities of the Company.
5. During the Prospectus Delivery Period, the (o) The Company will duly file, on a timely basis, with the Commission use commercially reasonably efforts to do and the Trading Market perform all reports and documents things required to be filed done or performed under the Exchange Act within the time periods and in the manner required this Agreement by the Exchange ActCompany prior to the Closing Date and any Additional Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
6. (p) The Company will not take, and will cause its Subsidiaries not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or that has constituted or might which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any securities security to facilitate the sale or resale of any of the CompanySecurities.
(q) The Company shall cause to be prepared and delivered to the Underwriters, at its expense, within two (2) Business Days from the date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriters, that may be transmitted electronically by the Underwriters to offerees and purchasers of the Securities for at least the period during which a Prospectus relating to the Securities is required to be delivered under the Act or the Exchange Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriters, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for online time).
Appears in 1 contract