Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Underwriting Agreement (Haven Bancorp Inc), Underwriting Agreement (Haven Bancorp Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Until the obligations under this Note are repaid in full (including all Principal, Interest and Default Interest (if any)), Obligor shall conduct the business of Pogo and its Subsidiaries in the ordinary course, consistent with past practice during the nine (9) months prior to furnish the closing of the transactions contemplated by the Purchase Agreement (including by maintaining levels of compensation to employees that are no more than such information as expenses and costs incurred by Pogo and its Subsidiaries for compensation to employees during the nine (9) months prior to the closing of the transactions contemplated by the Purchase Agreement), except that the Company or Obligor may be required and otherwise pay its executives that compensation which has been approved by the Company’s compensation committee, with the advice of an independent compensation consultant, not to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required exceed $700,000 annually (which, for the distribution avoidance of the Capital Securities;doubt, shall exclude compensation payable as deferred compensation after full satisfaction of this Note).
(b) Without limiting the foregoing, unless otherwise consented to prepare the Prospectus in a form approved writing by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)each Holder, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) so long as the Underwriters may reasonably request obligations under this Note are outstanding, Obligor shall not (i) transfer, sell, hypothecate, encumber, or dispose of any material assets of Pogo or its Subsidiaries except for (x) sales of inventory (including hydrocarbons produced) in the purposes contemplated ordinary course of business on ordinary and market-based trade terms, (y) the creation of liens securing the Senior Debt (as defined below) or (z) other transactions consented to in writing by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇▇, except to or (ii) acquire any material assets outside of the extent permitted by Regulation S-T;ordinary course of business.
(c) to advise Until the Representatives promptly obligations under this Note are repaid in full (including all Principal, Interest and Default Interest (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without chargeany)), (i) signed copies any net proceeds raised by Obligor, Pogo or any of the Registration Statement, as initially filed their Subsidiaries in connection with the Commissionissuance of any equity or debt securities shall be used to repay (whether in full or in part) the accrued and outstanding obligations under this Note, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option none of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainObligor, at its expenseSPAC Subsidiary, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities Pogo or any securities convertible into of their respective Subsidiaries shall incur additional indebtedness for borrowed money that is senior (in right or exchangeable structurally (other than the indebtedness and other obligations under the Senior Loan Agreement)) or materially amend or restate the Senior Loan Agreement to allow for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyadditional borrowings thereunder.
Appears in 2 contracts
Sources: Promissory Note (HNR Acquisition Corp.), Promissory Note (HNR Acquisition Corp.)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) The Company covenants that all shares of Common Stock issuable as Common Stock Interest, pursuant to furnish such information as may an Interest Make-Whole Payment and/or pursuant to a Qualifying Fundamental Change Payment will be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;Freely Tradeable.
(b) The Company covenants that all shares of Common Stock issued upon conversion of Notes, as Common Stock Interest, pursuant to prepare the Prospectus in an Interest Make-Whole Payment and/or pursuant to a form approved Qualifying Fundamental Change Payment will be duly authorized by all necessary corporate action (including any necessary action by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City timeCompany’s Board of Directors), on validly issued, fully paid and non-assessable by the day following the execution Company and delivery of this Agreement free from all taxes, liens and to furnish promptly (and charges with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;issue thereof.
(c) The Company covenants that, if any shares of Common Stock to advise be provided for the Representatives promptly and (if requested purpose of conversion of Notes, as Common Stock Interest, pursuant to an Interest Make-Whole Payment and/or pursuant to a Qualifying Fundamental Change Payment hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued upon conversion, the Company will, to the extent then permitted by the Representatives) to confirm rules and interpretations of the Commission, secure such advice in writingregistration or approval, when as the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;case may be.
(d) to advise The Company further covenants that if at any time the Representatives immediately, confirming such advice in writing, of (i) the receipt of Common Stock shall be listed on any comments from, national securities exchange or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by automated quotation system the Company or the Trust with the Commissionwill list and keep listed, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act RegulationsNotes, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestCommon Stock Interest, pursuant to an Interest Make-Whole Payment and/or pursuant to a Qualifying Fundamental Change Payment.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Indenture (Akoustis, Inc.), Indenture (Akoustis Technologies, Inc.)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible;
(c) to prepare the Prospectus in a form reasonably approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement, or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted ▇▇▇▇itted by Regulation S-T;
(cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative promptly and (and, if requested by the Representatives) Representative, to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(de) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative immediately, and, if requested by the Representative, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
writing (e) unless required to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed do so by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiarieslaw);
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act or the Securities Act Regulations whichthat, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and furnish promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of 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 Securities Act and the Securities Act Regulations;
(g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(h) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any prospectus pursuant to Rule 424 under the Securities Act in each case relating to the Shares, to furnish for review a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and not to file any such proposed amendment or supplement to which the Representative reasonably object (unless required to do so by law);
(i) signed to furnish promptly to the Representative, upon request, such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto relating to the Shares (including all exhibits filed therewith or incorporated by reference therein)) as the Representative may reasonably request;
(j) to furnish to the Representative, (ii) copies not less than one business day before filing with the Commission subsequent to the date of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or the Securities Act Regulations, as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations;
(hk) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(il) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or later than 90 days days, if such 12-month period coincides with fiscal quarter is the last fiscal quarter of the Company's fiscal year), ) an earnings statement complying with satisfying the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jm) to use its best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lo) to refrain during a period of 60 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Series A Preferred Stock or securities of the Trust or the Company substantially similar to or ranking on par with or senior to the Capital Securities Series A Preferred Stock (including units of preferred limited partnership interest in Caplease, LP) or any securities convertible into or exercisable or exchangeable for Series A Preferred Stock or such securities, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of Series A Preferred Stock or such other securities, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Series A Preferred Stock or such other securities, in cash or otherwise;
(mp) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(q) to use its best efforts to meet the requirements to qualify as a REIT under the Code, unless it is determined by the Company's board of directors to be in the best interest of the Company for the Company to no longer so qualify; and
(nr) that to use its best efforts not to invest, or otherwise use the provisions proceeds received by the Company from its sale of the engagement letter agreement dated March 5, 1999, between Shares in such a manner as would require the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive or any of its Subsidiaries to register as an investment company under the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyInvestment Company Act.
Appears in 1 contract
Certain Covenants. I. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(c▇) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(h1) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Nasdaq Stock Market and to file with the NASDAQ National Nasdaq Stock Market all documents and notices required by the NASDAQ National Nasdaq Stock Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Nasdaq Stock Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(l) to refrain during a period of [ ] days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(m) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representative the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsreasonably satisfactory to the Representative, ▇▇▇▇▇▇ & Co.responding to or commenting on such rumor, Inc. shall survive publication or event.
II. Each Selling Stockholder hereby agrees with each Underwriter to deliver to the execution Representatives prior to the Closing Time a properly completed and delivery of this Agreement and executed United States Treasury Department Form W-8 (if the consummation Selling Stockholder is a non-United States person, within the meaning of the transactions contemplated herebyInternal Revenue Code of 1986, as amended) or Form W-9 (f the Selling Stockholder is a United States person, within the meaning of the Internal Revenue Code of 1986, as amended).
Appears in 1 contract
Sources: Underwriting Agreement (American Home Mortgage Holdings Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree Purchaser agrees with each Underwriter Liberty as follows:
(a) The Purchaser shall furnish to furnish Liberty such information regarding itself, its intended method of distribution of Registered Shares and such other information as Liberty may from time to time reasonably request for purposes of preparation of the Liberty Registration Statement and to maintain the effectiveness of such registration statement.
(b) At least thirty-six (36) hours prior to any disposition of Registered Shares by the Purchaser, the Purchaser under the Liberty Registration Statement will orally advise Liberty of the dates on which such disposition is expected to commence and terminate, the number of Registered Shares it reasonably expects to be required sold, the intended method of disposition and otherwise such other information as Liberty may reasonably request in order to cooperate supplement the prospectus contained in qualifying the Capital Liberty Registration Statement or filed pursuant to Rule 424 under the Securities for offering Act in accordance with the rules and sale regulations of the Commission. Promptly after receiving such advice, Liberty will, if necessary, (i) prepare a supplement to the prospectus based upon such advice and file the same with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with applicable Law and (ii), if necessary, qualify the Registered Shares to be sold under the securities or blue sky laws of such states jurisdictions in the United States as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
Purchaser shall reasonably request (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect subject to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City timeproviso set forth in Section 2.1(iii) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;).
(c) to advise Liberty, in any event, may postpone the Representatives promptly and (if requested by filing or the Representatives) to confirm such advice in writing, when effectiveness of the Liberty Registration Statement has become effective or suspend, at any time or from time to time, the use of the Liberty Registration Statement for a period of time, not to exceed in any single instance 30 days, and when in all instances an aggregate of 60 calendar days (a "Blackout Period");, if Liberty determines that the filing or continued use of the Liberty Registration Statement would (x) require the public disclosure of material non-public information concerning any post-effective amendment thereto becomes effective under material transaction or material negotiations involving Liberty or any of its affiliates that, in the Securities Act Regulations;good faith judgment of the Board of Directors of Liberty (or the executive committee thereof), would materially interfere with such transaction or negotiations or, (y) otherwise require premature disclosure of information that, in the good faith judgment of the Board of Directors of Liberty (or the executive committee thereof), would adversely affect or otherwise be detrimental to Liberty. Liberty shall provide the Seller with written notice of its commencement of a Blackout Period and of the termination of such Blackout Period. Notwithstanding the foregoing, at least five business days shall elapse between the end of one Blackout Period and the beginning of another Blackout Period.
(d) to advise the Representatives immediatelyThe Purchaser agrees that, confirming such advice in writing, of (i) the upon receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years written notice from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly Liberty of the happening of any event known of the kind described in Section 2.1(iv) (a "Material Event"), the Purchaser will forthwith discontinue disposition of the Registered Shares pursuant to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment Liberty Registration Statement until receipt of copies of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact supplemented or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingamended prospectus contemplated by Section 2.1(iv), and, during if so requested by Liberty, will deliver to Liberty all copies of the prospectus covering the Registered Shares in its possession at the time of receipt of such timenotice; provided, to prepare and promptly furnish to the Underwriterthat if, at the Trust's time of receipt of such notice, (x) the Purchaser has complied with its obligations under Section 2.4(b), (y) the Purchaser has sold Registered Shares but not yet delivered such shares and (z) the Company's expense, such amendments misstatement or supplements to such Prospectus as may be necessary to reflect any such change and to furnish omission arising from the Material Event is not of a nature that would require a post-effective amendment to the Underwriters Liberty Registration Statement, then Liberty shall use its commercially reasonable best efforts to take such action (including preparing and delivering a copy of prospectus supplement or filing a current report on Form 8-K) as will permit such proposed amendment or supplement before filing any such amendment or supplement with the Commission;shares to be timely delivered.
(ge) to furnish The Purchaser shall, at any time it is engaged in a distribution of Registered Shares, comply with all applicable laws, including Regulation M promulgated under the Representatives Exchange Act and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed will not engage in any stabilization activity in connection with the Commission, and securities of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)Liberty in contravention of such rules, (ii) copies of any document incorporated by reference will distribute the Registered Shares solely in the Prospectus (including exhibits thereto) manner described in the Liberty Registration Statement and (iii) so long will not bid for or purchase any securities of Liberty or attempt to induce any person to purchase any securities of Liberty other than as delivery of a prospectus by an Underwriter or dealer may be required by permitted under the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestExchange Act.
(hf) The Purchaser shall provide such information and materials, execute all such documents and take all such other actions as Liberty shall reasonably request in order to apply permit Liberty to comply with all applicable requirements of Law and to effect the net proceeds registration of the sale resale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistered Shares.
Appears in 1 contract
Sources: Registration Rights Agreement (Liberty Media Corp /De/)
Certain Covenants. (a) The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(ai) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery except service of this Agreement and to furnish promptly (and process with respect to the initial delivery offering and sale of the Shares); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such Prospectus, not later than 10:00 a.m. purpose;
(ii) to make available to the Underwriters in New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(ciii) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(eiv) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(v) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(vi) to furnish to you and, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; provided, however, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via EDGAR;
(fvii) to advise the Underwriters promptly ▇▇▇mptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gviii) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(ix) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ix) signed copies to furnish to you one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter or dealer copy to each of the other Underwriters;
(xi) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be required be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(d) hereof;
(hxii) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(xiii) to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableissuance, but in any event not later than the end sale and delivery of the fiscal quarter first occurring after Shares by the first anniversary Company, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers and (v) the filing for review of the public offering of the Shares by the NASDR (including the legal fees and filing fees and other disbursements of counsel to the Underwriters with respect thereto), (vi) any listing of the Shares on any securities exchange and any registration thereof under the Exchange Act, and (vii) the performance of the Company's other obligations under this Agreement;
(xiv) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (a)(vii) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formxv) not to sell, at the offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the CompanyCompany that are substantially similar to Common Shares or file a registration statement under the Act relating to the offer and sale of any shares of Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, complying with the provisions of Rule 158 warrants or other rights to purchase Common Shares or any other shares of the Securities Act Regulations) covering Company that are substantially similar to Common Shares for a period of 12 months beginning ninety (90) days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over"Lock-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainup Period"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of UBS Warburg LLC, except for (i) issuances of Common Shares upon the Representativesexercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters, (ii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Registration Statement and the Prospectus, (iii) issuances of Common Shares under the Company's Incentive Share Award Plan described in the Registration Statement and the Prospectus and (iv) issuances of Common Shares as partial or full payment for a period properties directly or indirectly acquired or to be acquired by the Company or its subsidiaries; provided that, the Company shall have conditioned such issuances of 180 days after Common Shares upon agreement of the date recipients to the restrictions of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesparagraph;
(mxvi) to use its best efforts to cause its officers, directors and affiliates not the Shares to (i) take, directly or indirectly prior to termination of be listed on the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the CompanyNYSE; and
(nxvii) that the provisions to use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyCode.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of 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) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing;
(ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hk) to furnish to each the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations;
(l) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(im) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by by, the NASDAQ National Market;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) to refrain during a period of 270 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nr) that the provisions to cause each 1% or greater stockholder, officer and director of the engagement Company to furnish to the Representatives, prior to the first Date of Delivery, a letter agreement dated March 5or letters, 1999substantially in the form of Exhibit A hereto, between pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the Company and disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. on behalf of the Underwriters;
(s) that the provisions of the letter agreement dated December 20, 2001 between the Company and the Representatives (the "Engagement Letter") shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein;
(t) that the Company shall (i) obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $xx million which shall apply to the offering contemplated herein and (ii) cause the Representatives to be added to such policy such that up to $xxx,xxx of its expenses pursuant to Section 9(a) shall be paid directly by such insurer and (iii) shall cause the Representatives to be added as an additional insured to such policy in respect of the offering contemplated herein;
(u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(v) that the Company will comply with all of the provisions of any undertakings in the Registration Statement; and
(w) that, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Sources: Underwriting Agreement (Integrated Alarm Services Group Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each the Underwriter as follows:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying From the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery date of this Agreement and to furnish promptly ending on the later of the Closing Time (and with respect or any Option Closing Time, if any) or such date as determined by the Underwriter that a prospectus relating to the initial delivery of such ProspectusShares is no longer required by law to be delivered in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to promptly advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, Underwriter of (i) the receipt of any comments fromcomments, or any request byrequests for amendment or supplement of the Registration Statement, the Commission for amendments Disclosure Package or supplements the Prospectus or any additional or supplemental information, from the Commission; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus, the Prospectus or for additional information with respect theretoany Issuer Free Writing Prospectus, or (iiiii) the time and date that any post-effective amendment to the Registration Statement becomes effective, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending its use or the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities for offering threatening or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes andpurposes, if and (v) any proceeding to remove, suspend or terminate the Commission listing of the Common Stock from the Nasdaq Global Market or any other government agency securities exchange upon which it is listed for trading, or authority should issue the threatening or initiation of any proceedings for any of such purposes. During the Prospectus Delivery Period, the Company will use its best efforts to prevent the issuance of any such order, to make every reasonable effort order described in clause (iv) and to obtain the lifting or removal of such order as soon as possible; to advise possible the Representatives promptly lifting thereof, if issued.
(b) The Company will (i) prepare and timely file with the Commission under Rule 424(b) under the Securities Act a Prospectus in a form approved by the Underwriter containing information previously omitted at the time of any proposal to amend or supplement effectiveness of the Registration Statement in reliance on Rules 430A, 430B or Prospectus and to file no such amendment or supplement to which 430C under the Representatives shall reasonably object in writing;Securities Act.
(ec) to furnish to During the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustProspectus Delivery Period, the Company and/or will comply in all material respects with all requirements imposed upon it by the Subsidiaries;Securities Act and the Exchange Act, including the rules and regulations thereunder, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by this Agreement, the Registration Statement, the Disclosure Package, and the Prospectus.
(fd) to During the Prospectus Delivery Period, the Company will advise the Underwriters Underwriter promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations or development which, in the judgment of the Trust and the CompanyCompany , (i) would require the making of any change in the Disclosure Package or the Prospectus then being used so that the Disclosure Package or the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such (ii) as a result of which any Issuer Free Writing Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment conflicted or supplement before filing any such amendment or supplement would conflict with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of information contained in the Registration Statement, as initially filed the Preliminary Prospectus or the Prospectus;
(e) The Company will file promptly with the CommissionCommission any amendment or supplement to the Registration Statement, and of all amendments Preliminary Prospectus, the Prospectus or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)any Issuer Free Writing Prospectus that may, (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery judgment of a prospectus by an Underwriter the Company or dealer may the Underwriter, be required by the Securities Act or any other law, rule or regulation or be requested by the Securities Act RegulationsCommission.
(f) Prior to amending or supplementing the Registration Statement, as many including any Rule 462 Registration Statement, Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company shall furnish to the Underwriter for review and comment 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.
(g) The Company will furnish to the Underwriter and counsel for the Underwriter copies of any the Registration Statement (including a signed copy), the Preliminary Prospectus and Prospectus, the Prospectus or any Issuer Free Writing Prospectus, including all amendments, supplements and any amendments thereof exhibits to such documents, in each case as soon as available and supplements thereto in such quantities as the Representatives Underwriter may from time to time reasonably request.
(h) During the Prospectus Delivery Period, the Company will furnish to the Underwriter, not less than one (1) business day before filing with the Commission a copy of any document proposed to be filed by the Company with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(i) 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 (both domestic and foreign) as the Underwriter reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to execute a general consent to service of process (but not service of process with respect to the offering and sale of the Shares) in any state. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriter may reasonably request for distribution of the Shares.
(j) The Company shall apply the net proceeds of from the sale of the Capital Securities and the Debentures Shares in accordance a manner consistent with the statements application thereof described under the caption "“Use of Proceeds" ” in the Registration Statement, the Disclosure Package and the Prospectus;.
(ik) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(l) During the Prospectus Delivery Period, the Company will not take, and will use its best efforts to cause its officers, directors and affiliates not to take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or that has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(m) The Company will make generally available to its security holders and to the Representatives holders, as soon as practicable, but practicable and in any event not later than the end of the fiscal quarter first occurring 15 months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in formreasonable detail, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 at least twelve (12) consecutive months beginning after the effective date of the Registration Statement;, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(jn) to use its best efforts to effect and maintain For a period of at least two (2) years from the quotation of Closing Time, the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to Company will engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;Shares.
(lo) without From the date hereof until ninety (90) days after the date of the Prospectus (“Lock-Up Period”),without the prior written consent of the RepresentativesUnderwriter, for a period of 180 days after the date of this AgreementCompany will not: (i) offer, not to offerpledge, issue, sell, contract to sell sell, purchase, contract to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of any additional securities of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; or (ii) enter into any swap or other arrangement that represent transfers to another, in whole or in part, any of the right to receive economic consequences of ownership of the Common Stock, whether any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to transaction described in clause (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sellabove is to be settled by delivery of Common Stock or such other securities, bid for, purchase in cash or pay anyone any compensation for soliciting purchases of the Capital Securities otherwise; or (iii) pay file any registration statement with the Commission relating to the offering of any shares of Common Stock or agree any securities convertible into or exercisable or exchangeable for Common Stock. The restrictions contained in the preceding sentence shall not apply to pay (A) the Shares to any person any compensation for soliciting any order be sold hereunder, (B) the issuance of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding exhibits thereto), the Disclosure Package and the Prospectus, (C) the issuance of employee stock options not exercisable during the Lock-Up Period and the grant of restricted stock awards or restricted stock units that will not vest during the Lock-Up Period, in each case pursuant to purchase any other securities equity incentive plans described in the Registration Statement (excluding exhibits thereto), the Disclosure Package and the Prospectus, or (D) the issuance of Common Stock in connection with acquisitions of businesses (including acquisition of the Company; and
C Wonder brand as described in the Disclosure Package and the Prospectus), strategic partnerships, licensing arrangements or joint ventures. Notwithstanding the foregoing, if (nx) that the provisions Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the engagement letter agreement dated March 5Lock-Up Period, 1999or (y) prior to the expiration of the Lock-Up Period, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive announces that it will release earnings results during the execution and delivery of this Agreement and 16-day period beginning on the consummation last day of the transactions contemplated herebyLock-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 Underwriter waives such extension in writing.
Appears in 1 contract
Certain Covenants. The Trust Company and the Company hereby covenant Operating Partnership hereby, jointly and severally, agree with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to reasonably cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares; provided that neither the Company nor the Operating Partnership shall be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or partnership;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible;
(c) to prepare the Prospectus in a form reasonably approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time)) on the second day following the execution and delivery of this Agreement) , or on such other day as the parties may mutually agree, to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) if necessary or appropriate, timely file the Rule 462(b) Registration Statement;
(e) to advise the Representatives Representative promptly and (and, if requested by the Representatives) Representative, to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulationseffective;
(df) to advise the Representatives immediatelyRepresentative promptly, confirming and, if requested by the Representative, to confirm such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and and, except to the extent required by law, to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or Company or the Company Operating Partnership within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act, the Securities Act Regulations, the Exchange Act or the Exchange Act Regulations whichthat, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and furnish promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of 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 Securities Act and the Securities Act Regulations;
(h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company after consultation with the Representative, be required by the Securities Act or Securities Act Regulations or requested by the Commission;
(gi) prior to filing with the Commission any 462(b) Registration Statement or amendment to the Registration Statement or supplement to the Prospectus or any prospectus pursuant to Rule 424 under the Securities Act, to furnish for review a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and, without chargeexcept to the extent required by law, not to file any such proposed 462(b) Registration Statement, amendment or supplement to which the Representative reasonably objects;
(ij) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the foregoing as the Representative may reasonably request;
(k) to furnish to the Representative, not less than one business day before filing with the Commission subsequent to the date of the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or Act, the Securities Act Regulations, as many copies the Exchange Act or the Exchange Act Regulations a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(im) to make generally available to its security holders and to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), reasonably practicable an earnings statement complying with satisfying the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of and Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the end of the quarter which the effective date of the Registration StatementStatement occurred;
(jn) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable, exchangeable or redeemable for Common Stock (including Units and LTIP Units), or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the foregoing shall not apply to (A) grants of stock options, LTIP Units or restricted stock to employees, consultants or directors pursuant to an employee benefit plan in existence on the date hereof and described in the Registration Statement and the Prospectus (and the filing of a registration statement under the Securities Act on Form S-8 for such plan) or (B) issuances of Common Stock, Units or LTIP Units or other securities convertible into or exercisable, exchangeable or redeemable for Common Stock as consideration for the Company’s acquisition of (i) real property, (ii) loans with respect to real property, or (iii) entities that own or control real property;
(mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause causes or result results in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) except as contemplated herein, sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) except as contemplated herein, pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nr) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, to use its best efforts to cause B▇▇▇▇▇▇ & Co., Inc. shall survive the execution R▇▇▇▇▇ and delivery of this Agreement each executive officer and the consummation director of the transactions Company (including those individuals identified in the Prospectus as becoming an executive officer or director of the Company after the Initial Closing Time) to furnish to the Representative, prior to the first Initial Closing Time, a letter or letters, substantially in the form of Exhibit A hereto;
(s) to obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of [$ ], which shall apply to the offering contemplated herebyherein;
(t) to comply with all of the provisions of any undertakings in the Registration Statement and to file with the Commission such reports as may be required pursuant to Rule 463 of the Securities Act Regulations;
(u) to use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2005;
(v) to use its best efforts not to invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of its Subsidiaries to register as an investment company under the Investment Company Act;
(w) in connection with the Directed Share Program, to use its best efforts ensure that the Directed Shares will be restricted from sale, transfer, assignment, pledge or hypothecation to the extent required by the NASD or the NASD rules for a minimum period of 180 days following the date of the effectiveness of the Registration Statement; and to direct the transfer agent to place stop transfer restrictions upon such securities for such period of time; and
(x) to use its best efforts to consummate, as promptly as practicable, the Formation Transactions as described in the Registration Statement and Prospectus and as provided in the Formation Agreements as in existence on the date hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Midlantic Office Trust, Inc.)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective under the Securities Act or the Securities Act Regulations;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), of the Securities Act Regulations on the day following the execution and delivery of this Agreement or on such other day as the parties hereto may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriters) copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TT and Rule 424;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement that becomes known to the Company, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(fh) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act Regulations whichif, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) such event or development would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of such event or development any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; provided, that the Company’s obligations under this subsection (h) shall terminate upon the later of (1) the final Option Closing Time and (2) the completion of the underwriters’ initial distribution of shares, but in no event shall it continue for later than three months after the Closing Time.
(i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative after advice by counsel, be required by the Securities Act or requested by the Commission;
(gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(ik) to furnish promptly upon request to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) other than warrants to be issued at the Closing Time as described in the Prospectus and the Disclosure Package, to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesFBR Capital Markets & Co., for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option, right or warrant to purchase or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), directly or indirectly, any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities security convertible into into, exercisable for or exchangeable for Common Stock or that represent filing any registration statement under the right Securities Act with respect to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securitiesforegoing (other than a registration statement on Form S-8 that is described in the Prospectus and the Disclosure Package), (ii) sellentering into any swap or any other arrangement or transaction that transfers to another, bid forin whole or in part, purchase directly or pay anyone indirectly, any compensation for soliciting purchases of the Capital Securities economic consequences of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) pay filing or agree causing to pay be filed a registration statement under the Securities Act, including any amendment thereto, with respect to the registration of any person shares of Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock or any compensation for soliciting other security of the Company or (iv) publicly disclosing the intention to do any order of the foregoing. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any grant of options to purchase Common Stock, or any issuance of shares of restricted Common Stock or other securities equity based awards, pursuant to the Company’s 2010 Omnibus Incentive Plan described in the Prospectus, and the 180-day restricted period described in the preceding sentence will be extended if: (1) during the last 17 days of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between 180-day restricted period the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive issues an earnings release or material news or a material event relating to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Company occurs or
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writingpromptly, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15
(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market American Stock Exchange and to file with the NASDAQ National Market American Stock Exchange all documents and notices required by the NASDAQ National Market American Stock Exchange of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAmerican Stock Exchange;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act;
(o) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or other instrument granted under the Company’s 1997 Stock Option and Awards Plan, as amended (the “Option Plan”), (C) any shares of Common Stock issuable by the Company upon the conversion of securities or the exercise of warrants outstanding on the date hereof and referred to in the Prospectus, and (D) the grant of any option or other instrument to purchase or acquire shares of Common Stock of the Company under the Option Plan and Awards Plan;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsresponding to or commenting on such rumor, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges ----------------- that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has -------- agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre- effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, on behalf of the Standby Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel), incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby; provided, however, the reimbursable costs and expenses of -------- ------- the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
Appears in 1 contract
Sources: Commitment to Purchase Stock and Warrants (Arch Communications Group Inc /De/)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(e) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(f) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eg) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, Company and the Company and/or the Subsidiariessubsidiaries;
(fh) to advise the Underwriters Representative promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(ik) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(l) to furnish to the Representative, not less than two business days before filing with the Commission, during the period referred to in paragraph (iii) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during the period of five years hereafter to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Nasdaq Global Select Market (the “Nasdaq”) and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq;
(kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lq) to refrain, from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mr) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(ns) to cause each director and certain officers of the Company to furnish to the Representative, prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters;
(t) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event;
(u) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Registration Statement;
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) to furnish such information as may be required The parties acknowledge and otherwise to cooperate agree that the Facility is currently secured by the loan and loan documents described in qualifying Exhibit B (the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;"Facility Loan Documents").
(b) Tenant further acknowledges and agrees that throughout the Lease Term, Tenant shall use commercially reasonable efforts to prepare comply, and shall cause [Emeritus/EmeriCare] in the Prospectus in a form approved by course of providing the Underwriters Services to comply, with all of the requirements, obligations and file such Prospectus with limitations imposed under the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), Facility Loan Documents on Landlord and/or on any entity leasing the day following the execution and delivery of this Agreement and to furnish promptly (and Facility from Landlord with respect to the initial delivery of such ProspectusFacility including, but not later than 10:00 a.m. (New York City time) on the day following the execution limited to, if and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writingapplicable, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt obligation to maintain the Facility in good, orderly, clean, safe, sanitary and sightly condition and to apply any insurance proceeds in accordance with the terms of any comments fromthe Facility Loan Documents, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by limitations imposed with respect to the Commission remodeling, reconstruction, addition to, or demolition of all or any stop order suspending the effectiveness part of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusFacility, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterobligation to, at all times, maintain in full force and effect a license from the Trust's and State to operate the Company's expense, such amendments or supplements to such Prospectus Facility as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge[skilled nursing/assisted living] facility, (iiv) signed copies of the Registration Statement, prohibition on operating the Facility as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)anything other than as a [skilled nursing/assisted living] facility, (iiv) copies of any document incorporated by reference in the Prospectus limitations on assignment and subletting, (including exhibits theretovi) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities limitations on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result reduction in, or which might expansion of, the licensed bed capacity of the Facility, (vii) the requirements with respect to the maintenance and inspection of the Facility’s books and records, (viii) the obligation to comply with any applicable prohibitions contained therein on discrimination in admissions to the Facility, (ix) the obligation to deposit the operating income from the Facility in an account established in the future reasonably be expected to cause or result in, the stabilization or manipulation name of the price Facility at a financial institution whose deposits are insured by an agency of the Capital Securities federal government, (x) the obligation to ensure that the Facility is at all times properly equipped to operate as a [skilled nursing/assisted living] facility and (xi) the prohibition against paying amounts for services, supplies or any security materials which are in excess of the Companyamount ordinarily paid for such services, supplies or materials in the are where the services are rendered or the supplies or materials are furnished. Notwithstanding the previous sentence, Tenant does not undertake, and shall not be obligated to facilitate perform, any contractual covenant or financial obligation under the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyFacility Loan Documents.
Appears in 1 contract
Sources: Interim Lease and Services Agreement
Certain Covenants. I. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to execute a general consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible, and to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly Representative promptly, and to furnish the Representative with a copy for its review prior to filing, of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD NASD, the Nasdaq National Market or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and to file no such amendment or supplement to which the Representative shall reasonably object in writing;
(g) to furnish promptly to the Representatives Representative and counsel for the Underwriters, without charge, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) foregoing as the Representative may reasonably request, and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and or supplements thereto as the Representatives may Representative reasonably request.requests;
(h) to furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and Shares by the Debentures Company in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file make all filings required under applicable securities laws (including any required registration under the Exchange Act) and with the NASDAQ National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National Market;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities equity security of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exercisable or exchangeable for equity securities of the Company, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of equity securities of the Company, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold by the Company hereunder, (B) the issuance and repurchase of up to 330,000 shares of Common Stock to be issued to the Company's senior lenders upon consummation of this offering, as described in the Prospectus, (C) the redemption of all of the outstanding shares of the Company's Series C convertible preferred stock, par value $0.01 per share, (D) the redemption of the 162,345 shares of Common Stock from HealthPlan Holdings, Inc.for $5.0 million, and the redemption of up to 20,000 additional shares of Common Stock from HealthPlan Hodings, Inc. to the extent proceeds to the Company from any exercise of the underwriters' option to purchase Option Shares are sufficient therefor, each as described in the Prospectus, (E) any shares of Common Stock issued by the Company upon the exercise of an option or warrant, or the conversion of a convertible note, outstanding on the date hereof and referred to in the Prospectus, or (F) the filing of a registration statement registering the resale on a delayed or continuous basis of shares of Common Stock held by certain stockholders, as described in the Prospectus;
(mn) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(no) to file timely and accurate reports in accordance with the provisions of Florida Statutes Section 517.075, or any successor provision, and any regulation promulgated thereunder, if at any time after the effective date of the Registration Statement, the Company or any of its affiliates is engaging in business with the government of Cuba or any person or affiliate located in Cuba;
(p) upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, service marks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the "License"); provided that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;
(q) that the provisions of the engagement letter agreement dated March 5April 8, 1999, 2002 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. the Representative (the "Engagement Letter") shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and
(r) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event.
II. Each Selling Stockholder hereby agrees with each Underwriter to deliver to the Representative prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person, within the meaning of the Internal Revenue Code of 1986, as amended) or Form W-9 (f the Selling Stockholder is a United States person, within the meaning of the Internal Revenue Code of 1986, as amended).
Appears in 1 contract
Certain Covenants. I. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(c) to ▇▇ advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(h1) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Nasdaq Stock Market and to file with the NASDAQ National Nasdaq Stock Market all documents and notices required by the NASDAQ National Nasdaq Stock Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Nasdaq Stock Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(l) to refrain during a period of [ ] days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(m) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representative the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsreasonably satisfactory to the Representative, ▇▇▇▇▇▇ & Co.responding to or commenting on such rumor, Inc. shall survive publication or event.
II. Each Selling Stockholder hereby agrees with each Underwriter to deliver to the execution Representatives prior to the Closing Time a properly completed and delivery of this Agreement and executed United States Treasury Department Form W-8 (if the consummation Selling Stockholder is a non-United States person, within the meaning of the transactions contemplated herebyInternal Revenue Code of 1986, as amended) or Form W-9 (f the Selling Stockholder is a United States person, within the meaning of the Internal Revenue Code of 1986, as amended).
Appears in 1 contract
Sources: Underwriting Agreement (American Home Mortgage Holdings Inc)
Certain Covenants. The Trust Company agrees with the Underwriters, the Forward Seller and the Company hereby covenant and agree with each Underwriter as followsForward Counterparty:
(a) to furnish such information as may be required and otherwise to cooperate in each case qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Representatives and the Forward Seller of the receipt by the Company of any written notification with respect to (i) the suspension of the qualification of the Shares for sale in any jurisdiction or (ii) the initiation or threatening of any proceeding for such purpose;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives and the Forward Seller, promptly and, if requested by the Representatives or the Forward Seller, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and the Forward Seller and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following Securities Act within the execution and delivery of this Agreement time period set forth in Rule 424(b) and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery date of this Agreementdetermination of the price per Share to be paid by the public in connection with the offering of the Shares or on such other day as the parties may mutually agree) to the Underwriters as many and the Forward Seller copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters and the Forward Seller may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters and the Forward Seller will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives and the Forward Seller promptly (and (if requested required by the Representatives) , to confirm such advice in writing, ) when the Registration Statement has become effective and when any post-effective amendment thereto becomes has become effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and the Forward Seller and counsel for the Underwriters and obtain the reasonable consent of the Representatives and the Forward Seller prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediatelyRepresentatives, the Forward Seller and the Forward Counterparty immediately and, if requested by the Representatives, confirming such advice in writing, of (i1) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus, the Disclosure Package, or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii2) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Representatives, the Forward Seller and the Forward Counterparty promptly of the lifting or removal of such order; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representatives, the Forward Seller and the Forward Counterparty, upon advice of counsel after discussion with the Company and counsel for the Company, shall reasonably object in writing;
(eh) to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations, except to the extent such filing fees have been paid prior to the date hereof;
(i) unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish (i) to the Underwriters for a period of five two (2) years from the date of this Agreement and (iii) to the Forward Seller and the Forward Counterparty, until expiration or termination of the Forward Sale Agreement, (1) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii2) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD Commission or any national securities exchange on which any class of securities of the Company are listed; and (iii3) such other additional information as the Underwriters Underwriters, the Forward Seller and the Forward Counterparty from time to time may reasonably request regarding (any financial statements so requested to be on a consolidated basis to the Trust, extent the accounts of the Company and/or and its subsidiaries are consolidated in reports furnished to its security holders generally or to the SubsidiariesCommission);
(fj) to advise the Underwriters Underwriters, the Forward Seller and the Forward Counterparty promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act or the Securities Act Regulations which, in the judgment of the Trust and the Company, (1) would require the making of any change result in the Prospectus then being used so that or the Prospectus would not include Disclosure Package containing an untrue statement of a material fact or omit omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) would result in any Issuer Free Writing Prospectus conflicting with the information contained in the Registration Statement relating to the Shares or the Prospectus, or (3) would make it necessary to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to promptly prepare and promptly furnish to the UnderwriterUnderwriters, at the Trust's Forward Seller and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to Forward Counterparty copies of the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters, the Forward Seller and the Forward Counterparty and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement or the Prospectus, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations;
(k) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company, be required by the Securities Act or requested by the Commission;
(gl) except with respect to filings by the Company under the Exchange Act, during the period of time a Prospectus is required to be delivered in connection with the sale of Shares hereunder, prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters, without charge, Underwriters and obtain the reasonable consent of the Representatives to the filing;
(im) to furnish promptly to the Representatives a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein);
(n) during the period referred to in paragraph (i) above, to furnish to the Representatives and the Forward Seller, not less than two (ii2) copies full business days before filing with the Commission, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as ;
(o) to cooperate with the Representatives may reasonably request.in permitting the Shares to be eligible for clearance and settlement through the facilities of DTC;
(hp) to apply the net proceeds of from the sale of the Capital Securities Company Shares and the Debentures net proceeds due upon settlement of the Forward Sale Agreement in accordance with the statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(iq) to make generally available to its security holders and to deliver to the Representatives and the Forward Seller as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement);
(jr) to use its best commercially reasonable efforts to effect (1) apply to list the Company Shares, if any, to be issued and maintain sold by the quotation Company hereunder as soon as practicable after the date of this Agreement on the NYSE, and (2) apply to list the shares of Common Stock, if any, to be issued upon settlement of the Capital Securities Forward Sale Agreement on the NASDAQ National Market and NYSE prior to the date such shares of Common Stock are to be issued upon such settlement, and, in either case, to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE to effect and maintain the listing of companies that have securities that are traded in the over-the-counter market Initial Shares and quotations for which are reported by the NASDAQ National MarketOption Shares on the NYSE as soon as practicable after the date of this Agreement;
(ks) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesCommon Stock;
(lt) in connection with the offer and sale of the Shares, not to offer shares of Common Stock or any other securities convertible into or exchangeable or exercisable or redeemable for Common Stock in a manner in violation of the Securities Act; (u) not to distribute any prospectus or other offering material, other than the Registration Statement, the Prospectus and the Disclosure Package, in connection with the offer and sale of the Shares;
(v) to refrain during a period of 30 days from the date of the Prospectus, without the prior written consent of Deutsche Bank Securities Inc., from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, voluntarily making any public announcement of a disposition or transfer, or otherwise disposing of or transferring (or entering into any transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of the Company, (ii) a post-effective amendment to any of the Company’s registration statement on Form S-3 (No. 333-197435), the Company’s registration statement on Form S-3 (No. 333-146679) or the Company’s registration statement on Form S-3 (No. 333-190532), which registration statements relate to the resale of shares of Common Stock issuable upon exchange of the Exchangeable Senior Notes or a prospectus supplement to the prospectus included in either of such registration statements, in either case, for the purposes of naming the selling stockholders who may offer and sell such shares from time to time in the manner described therein, (iii) a period universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by the Company, provided that the Company will not sell any shares of 180 Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to such registration statement within 30 days after from the date of the Prospectus, (iv) a registration statement on Form S-8 with respect to grants of stock options, restricted stock or other stock based awards to employees, consultants or directors pursuant to an employee benefit plan in existence on the date hereof, and (v) an amendment to the Company’s Registration Statement on Form S-4 (No. 333-198234) or related prospectus or proxy statement filings relating to the issuance of shares of the Company’s Common Stock pursuant to the Merger Agreement and conducting any related shareholder solicitations and conducting any stockholder vote related thereto), or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Company Shares, if any, to be issued hereunder, (B) any shares of Common Stock issuable upon settlement of the Forward Sale Agreement or pursuant to an Acceleration Event (as defined in the Forward Sale Agreement), (C) any shares of Common Stock issued by the Company in connection with employee benefit plans, stock option plans, long-term incentive plans, direct stock purchase plans or distribution reinvestment plans existing at the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of (D) any additional securities of the Trust or issued by the Company substantially similar upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, Disclosure Package and the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesProspectus, (iiE) sellgrants of stock options, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Comm
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges ----------------- that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has -------- agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre- effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, on behalf of the Standby Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel), incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby; provided, however, the -------- ------- reimbursable costs and expenses of the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
Appears in 1 contract
Sources: Commitment to Purchase Stock and Warrants (Arch Communications Group Inc /De/)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) to furnish such information as may be required The parties acknowledge and otherwise to cooperate agree that the Facility is currently secured by the loan and loan documents described in qualifying Exhibit B (the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;"Facility Loan Documents").
(b) Tenant further acknowledges and agrees that throughout the Lease Term, Tenant shall use commercially reasonable efforts to prepare comply, and shall cause [Emeritus/EmeriCare] in the Prospectus in a form approved by course of providing the Underwriters Services to comply, with all of the requirements, obligations and file such Prospectus with limitations imposed under the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), Facility Loan Documents on Landlord and/or on any entity leasing the day following the execution and delivery of this Agreement and to furnish promptly (and Facility from Landlord with respect to the initial delivery of such ProspectusFacility including, but not later than 10:00 a.m. (New York City time) on the day following the execution limited to, if and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writingapplicable, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt obligation to maintain the Facility in good, orderly, clean, safe, sanitary and sightly condition and to apply any insurance proceeds in accordance with the terms of any comments fromthe Facility Loan Documents, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by limitations imposed with respect to the Commission remodeling, reconstruction, addition to, or demolition of all or any stop order suspending the effectiveness part of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusFacility, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterobligation to, at all times, maintain in full force and effect a license from the Trust's and State to operate the Company's expense, such amendments or supplements to such Prospectus Facility as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge[skilled nursing/assisted living] facility, (iiv) signed copies of the Registration Statement, prohibition on operating the Facility as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)anything other than as a [skilled nursing/assisted living] facility, (iiv) copies of any document incorporated by reference in the Prospectus limitations on assignment and subletting, (including exhibits theretovi) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities limitations on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result reduction in, or which might expansion of, the licensed bed capacity of the Facility, (vii) the requirements with respect to the maintenance and inspection of the Facility’s books and records, (viii) the obligation to comply with any applicable prohibitions contained therein on discrimination in admissions to the Facility, (ix) the obligation to deposit the operating income from the Facility in an account established in the future reasonably be expected to cause or result in, the stabilization or manipulation name of the price Facility at a financial institution whose deposits are insured by an agency of the Capital Securities federal government, (x) the obligation to ensure that the Facility is at all times properly equipped to operate as a [skilled nursing/assisted living] facility and (xi) the prohibition against paying amounts for services, supplies or any security materials which are in excess of the Companyamount ordinarily paid for such services, to facilitate supplies or materials in the sale are where the services are rendered or resale of any of the Capital Securities, (ii) sell, bid for, purchase supplies or pay anyone any compensation for soliciting purchases of materials are furnished. Notwithstanding the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billingsprevious sentence, ▇▇▇▇▇▇ & Co.does not undertake, Inc. and shall survive not be obligated to perform, any contractual covenant or financial obligation under the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyFacility Loan Documents.
Appears in 1 contract
Sources: Interim Lease and Services Agreement
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthe Underwriter:
(a) to furnish the Underwriter such information as may be reasonably required and otherwise to cooperate in qualifying the Capital Securities Shares for offering offer and sale under the securities or blue sky laws of such states as the Representatives Underwriter may reasonably designate and to maintain such qualifications in effect so as long as reasonably required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the sale of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as practicable and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has been declared effective by the Commission;
(c) to prepare the Prospectus in a form reasonably approved by the Underwriters Underwriter and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on within the day following time period prescribed by the execution and delivery of this Agreement Securities Act Regulations and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement) to the Underwriters Underwriter as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical substantially similar to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent as permitted by Regulation S-T;
(cd) to advise the Representatives Underwriter promptly and (if requested by the RepresentativesUnderwriter) to confirm such advice in writing, when the Registration Statement has become been declared effective by the Commission and when any post-effective amendment thereto becomes has been declared effective by the Commission under the Securities Act Regulations;
(de) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or or, to the knowledge of the Company, of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or or, to the knowledge of the Company, of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue to the Company any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or Prospectus and and, unless the Company determines it is required by applicable law, to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(ef) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(g) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Securities Act Regulations, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed;
(h) to the extent consistent with Regulation FD (for purposes of this paragraph (h), the phrase "consistent with Regulation FD" means without obligating the Company to make similar disclosures to all of its stockholders or the public generally), to furnish to the Underwriters Underwriter for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange the American Stock Exchange and (iii) such other publicly available information as the Underwriters Underwriter may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany;
(fi) to the extent consistent with Regulation FD (for purposes of this paragraph (i), the phrase "consistent with Regulation FD" means without obligating the Company to make similar disclosures to all of its stockholders or the public generally), to advise the Underwriters Underwriter promptly during any period of the happening of any event known to the Trust and/or the Company within the time during in which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, (i) of any material change in the judgment Company's assets, operations, business or condition (financial or otherwise) or (ii) of the Trust and the Company, happening of any event which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriter promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters Underwriter a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gj) to furnish promptly to the Representatives and counsel for the Underwriters, without charge, (i) Underwriter a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference the foregoing as the Underwriter may reasonably request;
(k) to furnish to the Underwriter, not less than two business days before filing with the Commission, subsequent to the effective date of the Registration Statement and during the period of time in the Prospectus (including exhibits thereto) and (iii) so long as delivery of which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by the Securities Act or delivered under the Securities Act Regulations, as many copies a copy of any Preliminary Prospectus and document proposed to be filed with the Prospectus and any amendments thereof and supplements thereto as Commission pursuant to Section 13, 14, or 15(d) of the Representatives may reasonably request.Exchange Act;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jm) to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market American Stock Exchange and to file with the NASDAQ National Market American Stock Exchange all documents and notices required by the NASDAQ National Market American Stock Exchange of companies that have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAmerican Stock Exchange;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesCommon Stock;
(lo) without the prior written consent to materially comply with all of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose provisions of any additional securities of undertakings in the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesRegistration Statement;
(mp) to use its best reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(q) to conduct its affairs in such a manner so as to ensure that the Company will not be an "investment company" or an entity "controlled" by an investment company within the meaning of the Investment Company Act;
(r) to not itself and to use its reasonable efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination the distribution of the underwriting syndicate contemplated by this AgreementShares, (i) any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(ns) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that the provisions (i) transactions are executed in accordance with management's general or specific authorizations, and (ii) transactions are recorded as necessary to permit preparation of the engagement letter agreement dated March 5financial statements in conformity with generally accepted accounting principles, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyto maintain asset accountability.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if at the time this Agreement is executed and delivered, a post-qualification amendment to the Offering Statement must be qualified before the offering of the Shares may commence, the Company will endeavor to cause such post-qualification amendment to become qualified as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-qualification amendment has become qualified;
(c) to prepare the Prospectus Offering Circular in a form approved by the Underwriters and file such Prospectus Offering Circular with the Commission pursuant to Rule 424(b253(g) of Regulation A not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such ProspectusOffering Circular, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus Offering Circular (or of the Prospectus Offering Circular as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective qualification date of the Registration Offering Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus Offering Circular and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Offering Statement has become effective qualified and when any post-effective qualification amendment thereto becomes effective qualified under the Securities Act Regulations;
(de) to furnish a copy of any proposed Testing-the-Waters Communication to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using, or filing with the Commission any Testing-the-Waters Communication pursuant to Rule 255 of Regulation A and Item 17 of Form 1-A, other than the Testing-the-Waters Communications, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rule 255 of Regulation A and Item 17 of Form 1-A applicable to any Testing-the-Waters Communication, including timely filing with the Commission, legending and record-keeping, as applicable;
(g) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Offering Statement, the Preliminary Offering Circular, the Offering Circular or Prospectus any Testing-the-Waters Communication, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness qualification of the Registration Statement Offering Statement, any order under Rule 258 of Regulation A suspending the Regulation A exemption with respect to the offering of the Shares, or of any order preventing or suspending the use of the Preliminary Offering Circular, the Offering Circular or any Preliminary Prospectus or the ProspectusTesting-the-Waters Communication, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, or (iii) the Company becoming subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; and to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Offering Statement, the Preliminary Offering Circular, the Offering Circular or Prospectus any Testing-the-Waters Communication and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five two years from the date of this Agreement except to the extent such information is accessible at h▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the Company’s public web site (i) as soon as available, copies of all annual, quarterly quarterly, and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus an Offering Circular relating to the Capital Securities Shares (or in lieu thereof the notice referred to in Rule 251(d)(ii)(E) of Regulation A) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used Offering Circular or the Disclosure Package so that the Prospectus Offering Circular or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) if it is necessary at any time to amend or supplement the Offering Circular or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Offering Circular or the Disclosure Package so that the Offering Circular or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 251(d)(ii)(E) of Regulation A) is so delivered, be misleading or, so that the Offering Circular or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Offering Statement, any Preliminary Offering Circular, the Offering Circular or any Testing-the-Waters Communication that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Offering Statement, any Preliminary Offering Circular, the Offering Circular or any Testing-the-Waters Communication, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, (i) signed copies Underwriters and obtain the consent of the Registration Representative to the filing;
(l) to furnish promptly to the Representative a signed copy of the Offering Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(m) to furnish to the Representative, not less than two business days before filing with the Commission, during the period referred to in paragraph (iig) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during the period of two years hereafter to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hn) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusOffering Circular and the Disclosure Package;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market Exchange selected by the Representative and to file with the NASDAQ National Market Exchange all documents and notices required by the NASDAQ National Market Exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketlisted thereon;
(kp) to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 3(r) hereof;
(q) to engage and maintain, at its expense, a registrar and transfer agent registered with the Commission for the Capital SecuritiesShares;
(lr) to refrain, from the date hereof until 180 days after the date of the Offering Circular, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust Common Stock or the Company substantially similar to the Capital Securities Preferred Stock or any securities convertible into or exercisable or exchangeable for Common Stock of Preferred Stock (“Stock Equivalents”), or filing any registration statement or offering statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. Notwithstanding the foregoing the Company may (A) grant stock options, restricted shares of Common Stock or other equity grants to employees or eligible consultants, in each case pursuant to the terms of the Company’s equity incentive plans existing as of the Closing Time and disclosed in the Disclosure Package, (B) issue Common Stock pursuant to the exercise of such options or equity grants, or the exercise (including net exercise) of warrants to purchase Common Stock or the conversion of other convertible securities outstanding at the Closing Time and described in the Disclosure Package, (C) sell Common Stock pursuant to this Agreement, (D) file one or more registration statements on Form S-8 relating to the options or other securities granted pursuant to the Company’s equity incentive plans existing as of the Closing Time and disclosed in the Disclosure Package, and (E) issue Common Stock or any Stock Equivalents in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership); provided that in the case of clause (E) such issuances, sales or deliveries shall not be greater than 5% of the total outstanding shares of Common Stock of the Company immediately following the completion of this Offering and, in the cases of clauses (B) and (E), the recipients of such securities agree to be bound by a lock-up letter in the form executed by the officers of the Company pursuant to Section 6(k) hereof;
(ms) not to, and to use its best efforts to cause its officers, directors directors, and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nt) to cause each executive officer, director and 5% or greater stockholder of the Company listed on Schedule III to furnish to the Representative, prior to the Closing Time, the Lock-Up Agreement in the form of Exhibit B hereto;
(u) if, at any time during the 90-day period after the date of the Offering Circular, any rumor, publication, or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Offering Circular) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event;
(v) the Company acknowledges that each Underwriter’s research analysts and research departments, if any, are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriter’s research analysts may hold and make statements or investment recommendations or publish research reports with respect to the Company or the offering that differ from the views of its investment bankers. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the provisions Company may have against such Underwriter with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriter’s investment banking divisions. The Company acknowledges that the Representative is a full-service securities firm and, as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short position in debt or equity securities of the engagement letter agreement dated March 5Company.
(w) The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the application thereof described under the caption “Use of Proceeds” in the Offering Statement, 1999the Disclosure Package, between and the Offering Circular.
(x) Neither the Company and Friedmannor, Billingsto its knowledge, ▇▇▇▇▇▇ & Co.any of its employees, Inc. shall survive directors or stockholders (without the execution and delivery of this Agreement and the consummation consent of the transactions contemplated herebyRepresentative) has taken or shall take, directly or indirectly, any action designed to or that has constituted, or that might reasonably be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(y) For a period of 90 days from the later of the Closing Date or the Option Closing Date, the Company shall advise the Representative (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the Company’s sec
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, on behalf of the Standby Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel), not to exceed $100,000, incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Mobilemedia Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. 5:00 p.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. 5:00 p.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, except to the extent available on ▇▇▇▇▇, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange or other communications supplied to holders of shares of Common Stock and (iiiii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of 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) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may be required by the Securities Act or requested by the Commission;
(gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and obtain the consent of the Representative to the filing, without chargewhich consent shall not be unreasonably withheld, delayed or conditioned;
(ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference the foregoing as the Representative may reasonably request;
(k) during the period referred to in paragraph (f) above, to file all documents required to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus or (C) granting options to purchase up to shares of Common Stock as of the Closing Date to certain officers and directors of the Company, as described in the Prospectus;
(mq) not to, and to use its best commercially reasonable efforts to cause its officers, directors directors, representatives and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nr) to cause each shareholder, officer and director of the Company listed on Schedule B-1 to Exhibit B attached hereto to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit B hereto,
(s) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of any such press release or public statement; provided, however, that as long as the Company has satisfied its obligations under this subparagraph (s), the final decision regarding whether to disseminate any such press release or other public statement, and the content thereof, shall rest with the Company;
(t) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5Registration Statement;
(u) that, 1999from and after the Closing Time, between the Company shall have in place and Friedmanmaintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, Billings(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, ▇▇▇▇▇▇ & Co., Inc. shall survive (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the execution recorded accountability for assets is compared with the existing assets at reasonable intervals and delivery of this Agreement appropriate action is taken with respect to any differences;
(v) that the Company will conduct its affairs and the consummation affairs of its subsidiaries in such a manner so as to ensure that neither the Company nor any of its subsidiaries will be an "investment company" or an entity "controlled" by an investment company within the meaning of the transactions contemplated herebyInvestment Company Act;
(w) that the Company (i) will comply, and will furnish such information as may be required and otherwise cooperate with the Underwriters to enable the Underwriters to comply, with all applicable securities and other applicable laws, rules and regulations, including without limitation, the rules and regulations of the NASD, in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
Appears in 1 contract
Certain Covenants. The Trust Company and the Company Partnership hereby covenant and agree with each Underwriter as followsUnderwriter:
(a) A. to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) B. if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
C. to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day or time as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) D. to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto is filed with the Commission or becomes effective under the Securities Act Regulations;
E. to prepare a final term sheet (dthe “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Underwriters, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 as soon as practicable following the execution of this Agreement; provided that the Company shall furnish the Underwriters 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 Underwriter or Underwriter’s counsel shall object.
F. to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
G. to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses identified in Schedule II hereto; H. to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort use best efforts to obtain the lifting or removal of such order as soon as possible; , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) I. to furnish to the Underwriters for a period of five two years from the date of this Agreement Agreement, except to the extent such documents are readily available to the Underwriters in electronic form in the Commission’s ▇▇▇▇▇ archives or on the Company’s website, (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockShares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other publicly available information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) J. to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) causes or would cause any Issuer Free Writing Prospectus to conflict with the information contained in the Registration Statement relating to the Shares, or (iii) would require the Prospectus or the Disclosure Package to be amended or supplemented in order for such document to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
K. to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(g) L. prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, (i) Underwriters and obtain the consent of the Representative to the filing;
M. to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference the foregoing as the Representative may reasonably request; N. during the period of five years hereafter to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) ; O. to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares substantially in accordance with the Company’s statements under the caption "“Use of Proceeds" ” in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Prospectus and the consummation of the transactions contemplated hereby.Disclosure Package;
Appears in 1 contract
Certain Covenants. (i) The Trust Service Provider acknowledges and agrees that the Advisory Shares have not been and, except as provided in Section 11 of this Agreement, are not being registered under the provisions of the 1933 Act or any state securities laws, and that the Advisory Sigma Shares may not be transferred unless registered under the 1933 Act or an exemption from registration applies.
(A) The Service Provider acknowledges and agrees that, until such time as the Sigma Shares are registered under the 1933 Act or an exemption from registration applies, the Sigma Shares may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the Sigma Shares): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
(B) Once a registration statement filed by the Company hereby covenant for the Advisory Shares has been declared effective or particular shares are eligible for resale pursuant to Rule 144 under the 1933 Act without restriction, thereafter, upon request of the Service Provider, the Company will substitute certificates without restrictive legend for certificates for any such shares issued prior to the time of such eligibility which bear such restrictive legend and agree remove any stop-transfer restriction relating thereto promptly, but in no event later than three business days after surrender of such certificates by the Service Provider. Service Provider agrees to sell or otherwise transfer the Advisory Shares only in compliance with each Underwriter as follows:applicable law.
(aiii) Not used.
(iv) Not used.
(v) Each of the Company and Service Provider agree to furnish perform, from time to time, such information other acts and to execute, acknowledge and deliver such other agreements, instruments, certificates and other documents as may be required and otherwise reasonably necessary in order to cooperate in qualifying effectuate the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved transactions contemplated by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (afford the Service Provider and Sigma Fund the full benefits with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestAdvisory Shares.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Offered ADSs for offering and sale sale, or establishing an exemption from such qualification, under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesOffered ADSs, provided that the Company shall not be required to qualify as a foreign corporation, to subject itself to taxation, or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered ADSs);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Offered ADSs may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably practicable and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the business day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the business day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legend and record keeping, as applicable;
(g) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Offered ADSs for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblereasonably practicable, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Offered ADSs contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five two years from the date of this Agreement Agreement, unless made available to the public on ▇▇▇▇▇ or any successor system, (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockADSs, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Offered ADSs (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication so that the Prospectus Prospectus, Disclosure Package or Written Testing-the-Waters Communication would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication conflicted or would conflict with the information contained in the Registration Statement relating to the Offered ADSs, or (iii) if it is necessary at any time to amend or supplement the Prospectus, the Disclosure Package or any Written Testing- the-Waters Communication, to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication so that the Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication as so amended or supplemented will not, in light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication, conflict with the information contained in the Registration Statement, or so that the Prospectus, the Disclosure Package or Written Testing-the-Waters Communication will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to submit promptly with the Commission any Written Testing-the-Waters Communication, in each case that may, in the reasonable judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or submitting to the Commission any Written Testing-the-Waters Communication, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(il) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Offered ADSs in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation of the Capital Securities Offered ADSs on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and with quotations for which are reported by the NASDAQ National MarketNASDAQ;
(kp) to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Offered ADSs within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 4(r) hereof;
(q) to engage and maintain, at its expense, a registrar and registrar, transfer agent and depositary for the Capital SecuritiesOffered ADSs;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling short, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring or announcing the intention to otherwise dispose of or transfer, (or entering into any additional securities of transaction or device which is designed to, or would reasonably be expected to, result in the Trust disposition by any person at any time in the future of), any ADSs or the Company substantially similar to the Capital Securities Ordinary Shares or any securities convertible into or exercisable or exchangeable for ADSs or Ordinary Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of ADSs or Ordinary Shares, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of ADSs or Ordinary Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Offered ADSs to be sold hereunder (including the Underlying Shares), or (B) any Ordinary Shares issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(ms) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesOffered ADSs, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Offered ADSs or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nt) to cause each stockholder (both with and without giving pro forma effect to the Conversion and the Share Distribution, as defined in the Prospectus), officer and director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(u) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $15.0 million which shall apply to the offering contemplated herein;
(v) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the ADSs has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event;
(w) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Certain Covenants. The Trust Partnership and the Company hereby covenant and Intermediate Partnership agree with each Underwriter as followsthe Underwriters:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Units for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesUnits; provided that the Partnership shall not be required to qualify as a foreign partnership or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) during the period of time referred to prepare in the Prospectus second sentence in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bparagraph (e) not later than 10:00 a.m. (New York City time)below, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives you and your counsel promptly and (and, if requested by the Representatives) you, to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of : (i) the receipt of any comments from, or any request by, by the Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, the Basic Prospectus or the Final Prospectus or for additional information with respect thereto, or information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Units for offering or sale in any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and (iii) of any change in the business, prospects, financial condition or results of operations of the Partnership or any of the Subsidiaries, or of the initiation or threatening happening of any proceedings for event, which makes any statement of such purposes anda material fact made in the Registration Statement or the Final Prospectus (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Registration Statement or the Final Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if or of the Commission necessity to amend or supplement the Final Prospectus (as then amended or supplemented) to comply with the Act or any other government agency or authority should law. If at any time within the period of time referred to in the second sentence in paragraph (e) below, the Commission shall issue any such orderstop order suspending the effectiveness of the Registration Statement, to the Partnership and the Intermediate Partnership will make every reasonable effort to obtain the lifting or removal withdrawal of such order at the earliest possible time;
(c) to furnish to you, at your request and without charge, (i) one signed copy of the Registration Statement as soon originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement and (ii) such number of conformed copies of the Registration Statement as possible; originally filed and of each amendment thereto, but without exhibits, as you may request;
(d) prior to advise the Representatives promptly end of the period of time referred to in the second sentence in paragraph (e) below, not to file any proposal amendment to amend or supplement the Registration Statement or Prospectus and to file no such make any amendment or supplement to the Final Prospectus, or file any document that, upon filing, becomes an Incorporated Document, of which you and your counsel shall not previously have been advised or to which, after you and your counsel shall have received a copy of the Representatives document proposed to be filed, you shall reasonably object in writingobject; provided that your consent shall not be unreasonably withheld or delayed;
(e) to furnish cause the Final Prospectus to be filed pursuant to, and in compliance with, Rule 424(b). As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as a prospectus is required by the Act to be delivered in connection with sales of the Units by the Underwriters or any dealer, the Partnership and the Intermediate Partnership will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Final Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Partnership and the Intermediate Partnership consent to the use of the Final Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Units are offered by the Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for a such period of five years from time thereafter as the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed Final Prospectus is required by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required Act to be delivered under in connection with sales of the Securities Act Regulations which, Units by the Underwriters or any dealer. If during such period of time any event shall occur that in the judgment of the Trust and Partnership or the Company, would require the making of any change Intermediate Partnership or in the Prospectus then being used so that opinion of counsel for the Prospectus would not include an untrue statement of a material fact or omit to state a material fact Underwriters is required to be stated set forth in the Final Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Final Prospectus (or to file under the Exchange Act any document that, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Partnership and the Intermediate Partnership will forthwith prepare and, during such time, to prepare and promptly furnish subject to the Underwriterprovisions of paragraph (d) above, at file with the Trust's and the Company's expense, such amendments Commission an appropriate supplement or supplements amendment thereto (or to such Prospectus as may be necessary to reflect any such change document), and to will expeditiously furnish to the Underwriters and dealers a copy reasonable number of such copies thereof. In the event that the Partnership or the Intermediate Partnership and the Underwriters agree that the Final Prospectus should be amended or supplemented, the Partnership and the Intermediate Partnership, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement before filing any such amendment or supplement with the Commissionsupplement;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(if) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Act), an earnings statement of the Partnership (which need not be audited) complying with Section 11(a) of the Act;
(jg) to use its best efforts to effect pay all costs, expenses, fees and maintain taxes (other than any transfer taxes and fees and disbursements of counsel for the quotation Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (i) the preparation and filing of the Capital Securities on Registration Statement, each Preliminary Prospectus, the NASDAQ National Market Final Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to file dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units, (iii) the reproduction and delivery of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) the filing fees incident to the review by the National Association of Securities Dealers, Inc. of the public offering of the Units, (vii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the NASDAQ National Market all documents marketing of the offer and notices required sale of the Units to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by or on behalf of the Partnership in connection with the road show slides and graphics, fees and expenses of any consultants engaged by or on behalf of the Partnership in connection with the road show presentations, travel, lodging and other expenses incurred by the NASDAQ National Market officers of companies that have the Partnership and any such consultants, and the cost of any aircraft chartered in connection with the road show and (viii) the performance of the Partnership's other obligations hereunder; and
(h) not to sell, offer or agree to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any Common Units or securities convertible into or exchangeable or exercisable for Common Units or warrants or other rights to purchase Common Units or any other securities of the Partnership that are traded in substantially similar to Common Units, or file or cause to be declared effective a registration statement under the overAct relating to the offer and sale of any shares of Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Common Units or any other securities of the Partnership that are substantially similar to Common Units for a period of 60 days after the date hereof (the "Lock-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainUp Period"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesUBS Warburg LLC, except for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination the registration of the underwriting syndicate contemplated by Units and the sales to the Underwriters pursuant to this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase issuances of Common Units upon the exercise of options or pay anyone any compensation for soliciting purchases of warrants disclosed as outstanding in the Capital Securities or Registration Statement and the Final Prospectus and (iii) pay or agree the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to pay to any person any compensation for soliciting any order to purchase any other securities of stock option plans described in the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Registration Statement and the consummation of the transactions contemplated herebyFinal Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (Northern Border Partners Lp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelypromptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) so long as the Underwriters are making a market in the Common Stock, to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock when the same are supplied to such holders, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish promptly to the Representatives and counsel for the Underwriters, without charge, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
h) to furnish to the Representatives, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (hf) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market Nasdaq and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. ("FBR"), which consent may be withheld in the Representativessole discretion of FBR, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or conversion of any debenture of the Company outstanding on the date hereof and referred to in the Prospectus;
(mn) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(no) that the provisions of Sections 2, 3, and 10 of the engagement letter agreement dated March 5December 15, 1999, 1998 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. the Representatives shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and
p) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Company and Representatives, responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) FAREISI Subsidiary 8 hereby covenants and agrees that, upon the request of EXPERIAN at any time prior to furnish the Effective Date, it shall transfer and convey to NEWCO on the Effective Date or promptly thereafter, all of the real property (or any portion thereof so requested) owned by it and listed under its name on Part 1(I) of Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such information as may be required deeds in recordable form, endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities conveyance, duly executed by FAREISI Subsidiary 8 or blue sky laws of such states other Person, as the Representatives case may designate be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to maintain such qualifications in effect so long as required for the distribution real property, free and clear of the Capital Securities;any Encumbrance of any kind, except FAREISI Permitted Encumbrances.
(b) FAREISI Subsidiary 7 hereby covenants and agrees that, upon the request of EXPERIAN at any time prior to prepare the Prospectus in a form approved by the Underwriters Effective Date, it shall transfer and file such Prospectus with the Commission pursuant convey to Rule 424(b) not later than 10:00 a.m. (New York City time), NEWCO on the day following Effective Date or promptly thereafter, all of the execution assets (or any portion thereof so requested) owned by it and delivery listed under its name on Part 1(H) of this Agreement Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and conveyance, duly executed by FAREISI Subsidiary 7 or such other Person, as the case may be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to furnish promptly (such assets, free and with respect to the initial delivery clear of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery any Encumbrance of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇kind, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestFAREISI Permitted Encumbrances.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Contribution and Joint Venture Agreement (First American Financial Corp)
Certain Covenants. A. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date initial filing of the Registration StatementProspectus with the Commission pursuant to Rule 424(b)) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(d) during the period that delivery of a prospectus is required in connection with the offering or sale of the Shares, to advise the Representatives immediatelypromptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) ), promptly after it receive notice thereof, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, Prospectus or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, jurisdiction or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as reasonably possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which shall be disapproved by the Representatives shall reasonably object in writingpromptly after reasonable notice thereof;
(e) to furnish to the Underwriters Representatives for a period of five three years from the date of this Agreement (i) as soon as availablepromptly, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, filed with the Commission and (ii) as soon as practicable after the filing thereof, copies such other financial information of all reports filed by the Company or and the Trust with the Commission, the NASD or any securities exchange and (iii) such other information Subsidiaries as the Underwriters Representatives may reasonably request regarding the Trust, the Company and/or the Subsidiariesrequest;
(f) to advise the Underwriters Representatives at the request of any of the Representatives promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, and, during such time, at the request of the Representatives, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such the Prospectus as may be necessary to reflect any such change in such quantities as the Representatives may reasonably request and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish to each Representative, during the Representatives and counsel for the Underwritersperiod referred to in paragraph (f) above, without charge, (i) signed copies a copy of the Registration Statement, as initially any document proposed to be filed with the CommissionCommission pursuant to Section 13, and 14, or 15(d) of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as reasonably practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file with the NASDAQ National The Nasdaq Stock Market all documents and notices required by the NASDAQ National Market it of companies that have securities that are traded in quoted on the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National Market;
(k) to engage and maintainrefrain during a period of 90 days from the date of the Prospectus, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. ("FBR"), from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, or otherwise disposing of or transferring, directly or indirectly, any share of Common Stock or any securities convertible into or exercisable or exchangeable for a period Common Stock, or filing any registration statement under the Securities Act with respect to any of 180 days after the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or any other right to acquire shares of Common Stock outstanding on the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose (C) the grant of any additional securities option to purchase shares of Common Stock of the Trust Company under the Company's stock option plans and (D) any shares of Common Stock or options to acquire any shares of Common Stock issued or issuable in connection with the Company substantially similar to the Capital Securities acquisition of any business or entity or assets of any securities convertible into business or exchangeable for or that represent the right to receive any such similar securities;entity; and
(ml) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, to not itself, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) except as contemplated by this Agreement, sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares, or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Underwriting Agreement (First Community Bancorp /Ca/)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelypromptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters Representatives at the request of any of the Representatives, for a period of five years from the date of this Agreement Agreement, (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market NYSE as soon as possible after the date hereof and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its best efforts to meet the requirements for qualification as a REIT under Sections 856 to 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act;
(o) to refrain during a period of 60 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co, Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of shares of Preferred Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of such Preferred Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder;
(mp) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur which may reasonably have a material effect on the market price of the engagement letter agreement dated March 5Preferred Stock, 1999, between the Company will forthwith consult in good faith with FBR concerning the substance of, and Friedmanconsult in good faith with FBR concerning the possibility of responding to or commenting on, Billingssuch rumor, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:agrees: -----------------
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; provided, however, that the Company shall not -------- ------- be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming and to confirm such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(e) subject to Section 5(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five (5) years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange is listed and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiary as soon as such communications, the Company and/or the Subsidiariesdocuments or information becomes available;
(fh) to advise the Underwriters promptly of the happening occurrence of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare prepare, file (subject to Section 5(d) hereof) and furnish promptly furnish to the Underwriterunderwriters, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve (12) months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than fifteen (15) months thereafter;
(j) to furnish to its stockholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, stockholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) signed to furnish to you such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) as you shall reasonably request;
(l) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two (iii2) so long as delivery business days prior thereto, a copy of a prospectus by an Underwriter the latest available quarterly or dealer may be required monthly unaudited interim consolidated financial statements of the Company and the Subsidiary, which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 7(d) hereof;
(hm) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issue, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) all out-of-pocket expenses (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) incurred by the Underwriters in administering the Directed Share Program, (vi) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the National Association of Securities Dealers Automated Quotation National Market System ("NASDAQ") and any registration thereof under the Exchange ------ Act, (vii) the review of the public offering of the Shares by the NASD, including the associated filing fees and the reasonable fees and disbursements of counsel for the Underwriters and (viii) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (h) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration StatementExchange Act;
(jp) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offersell, issue, offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of any additional securities of the Trust Common Stock or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable or exercisable for Common Stock or options, warrants or other rights to purchase Common Stock or any other shares of the Company that represent are substantially similar to Common Stock or file a registration statement under the right Act relating to receive the offer and sale of any such shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or options, warrants or other rights to purchase Common Stock or any other shares of the Company that are substantially similar securities;to Common Stock for a period of one hundred and eighty (180) days after the date hereof (the "Lock-up Period"), without the -------------- prior written consent of UBSW, except for (i) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters and (iii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Registration Statement and the Prospectus; and
(mq) to use its best efforts to cause its officers, directors and affiliates not the Common Stock to (i) take, directly or indirectly prior to termination of be listed for quotation on the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyNasdaq National Market.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as follows:the Underwriter: ------------------
(a) to furnish the Underwriter such information as may be reasonably required and otherwise to cooperate in qualifying the Capital Securities Shares for offering offer and sale under the securities or blue sky laws of such states as the Representatives Underwriter may reasonably designate and to maintain such qualifications in effect so as long as reasonably required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the sale of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as practicable and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has been declared effective by the Commission;
(c) to prepare the Prospectus in a form reasonably approved by the Underwriters Underwriter and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on within the day following time period prescribed by the execution and delivery of this Agreement Securities Act Regulations and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement) to the Underwriters Underwriter as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical substantially similar to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent as permitted by Regulation S-T;
(cd) to advise the Representatives Underwriter promptly and (if requested by the RepresentativesUnderwriter) to confirm such advice in writing, when the Registration Statement has become been declared effective by the Commission and when any post-effective amendment thereto becomes has been declared effective by the Commission under the Securities Act Regulations;
(de) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or or, to the knowledge of the Company, of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or or, to the knowledge of the Company, of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue to the Company any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or Prospectus and and, unless the Company determines it is required by applicable law, to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(ef) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(g) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Securities Act Regulations, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed;
(h) to the extent consistent with Regulation FD (for purposes of this paragraph (h), the phrase "consistent with Regulation FD" means without obligating the Company to make similar disclosures to all of its stockholders or the public generally), to furnish to the Underwriters Underwriter for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange the American Stock Exchange and (iii) such other publicly available information as the Underwriters Underwriter may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; PROVIDED that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by make available to the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (in New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(d) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(e) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may 13 commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(f) to furnish to you and, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; PROVIDED, HOWEVER, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(i) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ij) signed copies to furnish to you one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter or dealer copy to each of the other Underwriters;
(k) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be required be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(d) hereof;
(hl) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(m) to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableissuance, but in any event not later than the end sale and delivery of the fiscal quarter first occurring after Shares by the first anniversary Company, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) the filing for review of the public offering of the Shares by NASD Regulation, Inc. (including the legal fees and filing fees and other disbursements of counsel to the Underwriters with respect thereto), (vi) any listing of the Shares on any securities exchange and any registration thereof under the Exchange Act, and (vii) the performance of the Company's other obligations under this Agreement;
(n) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (g) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formo) not to sell, at the offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the CompanyCompany that are substantially similar to Common Shares or file a registration statement under the Act relating to the offer and sale of any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, complying with the provisions of Rule 158 warrants or other rights to purchase Common Shares or any other shares of the Securities Act Regulations) covering Company that are substantially similar to Common Shares for a period of 12 months beginning ninety (90) days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over"LOCK-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainUP PERIOD"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of UBS Warburg LLC, except for (i) issuances of Common Shares upon the Representativesexercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters, (ii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Registration Statement and the Prospectus, (iii) issuances of Common Shares under the Company's Incentive Share Award Plan described in the Registration Statement and the Prospectus and (iv) issuances of Common Shares as partial or full payment for a period properties directly or indirectly acquired or to be acquired by the Company or its subsidiaries; PROVIDED that, the Company shall have conditioned such issuances of 180 days after Common Shares upon agreement of the date recipients to the restrictions of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesparagraph;
(mp) to use its best efforts to cause its officers, directors and affiliates not the Shares to (i) take, directly or indirectly prior to termination of be listed on the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the CompanyNYSE; and
(nq) that the provisions to use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyCode.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust Company agrees with the Underwriters, the Forward Seller and the Company hereby covenant and agree with each Underwriter as followsForward Counterparty:
(a) to furnish such information as may be required and otherwise to cooperate in each case qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representatives for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Representatives and the Forward Seller of the receipt by the Company of any written notification with respect to (i) the suspension of the qualification of the Shares for sale in any jurisdiction or (ii) the initiation or threatening of any proceeding for such purpose;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives and the Forward Seller, promptly and, if requested by the Representatives or the Forward Seller, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and the Forward Seller and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following Securities Act within the execution and delivery of this Agreement time period set forth in Rule 424(b) and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery date of this Agreementdetermination of the price per Share to be paid by the public in connection with the offering of the Shares or on such other day as the parties may mutually agree) to the Underwriters as many and the Forward Seller copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters and the Forward Seller may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters and the Forward Seller will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives and the Forward Seller promptly (and (if requested required by the Representatives) , to confirm such advice in writing, when the Registration Statement has become effective and ) when any post-effective amendment thereto becomes to the Registration Statement has become effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and the Forward Seller and counsel for the Underwriters and obtain the reasonable consent of the Representatives and the Forward Seller prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediatelyRepresentatives, the Forward Seller and the Forward Counterparty immediately and, if requested by the Representatives, confirming such advice in writing, of (i1) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus, the Time of Sale Information, or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii2) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Representatives, the Forward Seller and the Forward Counterparty promptly of the lifting or removal of such order; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representatives, the Forward Seller and the Forward Counterparty, upon advice of counsel after discussion with the Company and counsel for the Company, shall reasonably object in writing;
(eh) to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations, except to the extent such filing fees have been paid prior to the date hereof;
(i) unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish (i) to the Underwriters for a period of five two (2) years from the date of this Agreement and (iii) to the Forward Seller and the Forward Counterparty, until expiration or termination of the Forward Sale Agreement, (1) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, Common Stock and (ii2) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD Commission or any national securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, on which any class of securities of the Company and/or the Subsidiariesare listed;
(fj) to advise the Underwriters Underwriters, the Forward Seller and the Forward Counterparty promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act or the Securities Act Regulations which, in the judgment of the Trust and the Company, (1) would require the making of any change result in the Prospectus then being used so that or the Prospectus would not include Time of Sale Information containing an untrue statement of a material fact or omit omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) would result in any Issuer Free Writing Prospectus conflicting with the information contained in the Registration Statement relating to the Shares or the Prospectus, or (3) would make it necessary to amend or supplement the Prospectus or the Time of Sale Information to comply with the Securities Act and the Securities Act Regulations and, during such time, to promptly prepare and promptly furnish to the UnderwriterUnderwriters, at the Trust's Forward Seller and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to Forward Counterparty copies of the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company’s own expense to the Underwriters, the Forward Seller and the Forward Counterparty and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Time of Sale Information so that the Prospectus or the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement or the Prospectus, or so that the Prospectus or the Time of Sale Information will comply with the Securities Act and the Securities Act Regulations;
(gk) except with respect to filings by the Company under the Exchange Act, during the period of time a Prospectus is required to be delivered in connection with the sale of Shares hereunder, (i) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters, without charge, Underwriters and obtain the reasonable consent of the Representatives to the filing and (iii) signed copies of to file promptly with the Commission any amendment or supplement to the Registration Statement, as initially filed with any Preliminary Prospectus, the CommissionProspectus or any Issuer Free Writing Prospectus that may, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery judgment of a prospectus by an Underwriter or dealer may the Company, be required by the Securities Act or requested by the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as Commission;
(l) to cooperate with the Representatives may reasonably request.in permitting the Shares to be eligible for clearance and settlement through the facilities of DTC;
(hm) to apply the net proceeds of from the sale of the Capital Securities Company Shares and the Debentures net proceeds due upon settlement of the Forward Sale Agreement in accordance with the statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Time of Sale Information;
(in) to make generally available to its security holders and to deliver to the Representatives and the Forward Seller as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations); provided, however, that; (i) covering a period such delivery requirements to the Company’s security holders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of 12 months beginning after Rule 158 and (ii) such delivery requirements to the effective date Representatives, the Forward Seller and the Forward Counterparty shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering Analysis and Retrieval System.
(o) (1) to have the Company Initial Shares and the Company Top-Up Initial Shares, if applicable, to be issued and sold by the Company accepted for listing, subject to notice of issuance by the NYSE, prior to the Closing Time, (2) to have the Company Top-Up Option Shares to be issued and sold by the Company accepted for listing, subject to notice of issuance by the NYSE, prior to the Date of Delivery, as applicable, and (3) to apply to list the shares of Common Stock, if any, to be issued upon settlement of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities Forward Sale Agreement on the NASDAQ National Market NYSE prior to the date such shares of Common Stock are to be issued upon such settlement and to have such shares accepted for listing, subject to notice of issuance by the NYSE, prior to the delivery thereof, and, in either case, to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE to effect and maintain the listing of companies that have securities that are traded in the over-the-counter market Initial Shares and quotations for which are reported by the NASDAQ National MarketOption Shares on the NYSE as soon as practicable after the date of this Agreement;
(kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesCommon Stock;
(lq) in connection with the offer and sale of the Shares, not to offer shares of Common Stock or any other securities convertible into or exchangeable or exercisable or redeemable for Common Stock in a manner in violation of the Securities Act;
(r) not to distribute any prospectus or other offering material, other than the Registration Statement, the Prospectus and the Time of Sale Information, in connection with the offer and sale of the Shares;
(s) to refrain during a period of 60 days from the date of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right or warrant for the sale of, lending or otherwise disposing of or transferring, directly or indirectly, any equity securities of the Company or any securities convertible into or exercisable or exchangeable for equity securities of the Company, or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a period registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of 180 the Company, (ii) a universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by the Company, provided that the Company will not sell any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to any such registration statement within 60 days after from the date of the Prospectus and (iii) a registration statement on Form S-8 with respect to grants of stock options, restricted stock or other stock based awards to employees, consultants or directors pursuant to an employee benefit plan in existence on the date hereof, (2) entering into any swap or other agreement that transfers, in whole or in part, directly or indirectly, any of the economic consequence of ownership of equity securities of the Company, whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) publicly announce the intention to enter into any transaction or take any action of the type described in clause (1) or (2) above that has not been previously disclosed. The foregoing sentence shall not apply to (A) any Company Shares to be issued or sold hereunder, (B) any shares of Common Stock issuable upon settlement of the Forward Sale Agreement or pursuant to an Acceleration Event (as defined in the Forward Sale Agreement), (C) any shares of Common Stock issued by the Company in connection with employee benefit plans, stock option plans, long-term incentive plans, direct stock purchase plans or distribution reinvestment plans existing at the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of (D) any additional securities of the Trust or issued by the Company substantially similar upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior in the Time of Sale Information and the Prospectus, (E) grants of stock options, Common Stock, restricted stock or restricted stock units to termination employees, consultants, independent insurance agents or directors of the underwriting syndicate contemplated by this Agreement, any action designed Company or its subsidiaries pursuant to stabilize or manipulate the price an employee benefit plan of the Capital Securities Company in existence on the date hereof and described in the Time of Sale Information and the Prospectus, provided that the grantees thereof agree not to sell, offer, dispose of or otherwise transfer any security such stock options (or the shares of Common Stock underlying such options), Common Stock restricted stock or restricted stock units during such 60-day period without the prior written consent of the CompanyRepresentatives, or which may cause or result in, or which might (F) the issuance of Common Stock in connection with the future reasonably be expected to cause or result in, acquisition of assets in a transaction exempt from the stabilization or manipulation requirements of the price Securities Act, provided that (x) the aggregate number of shares or securities issued pursuant to this clause (F) shall not exceed 5% of the Capital Securities or any security total number of outstanding shares of Common Stock immediately following the issuance and sale of the Company, to facilitate Initial Shares pursuant hereto and (y) the sale or resale beneficial owner of any of the Capital Securities, (ii) sell, bid for, purchase such shares or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter shall sign a lock-up agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.substantially
Appears in 1 contract
Sources: Underwriting Agreement (American Equity Investment Life Holding Co)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, on behalf of the Standby Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel) incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby; provided, however, the reimbursable costs and expenses of the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
Appears in 1 contract
Sources: Merger Agreement (Mobilemedia Corp)
Certain Covenants. The Trust and the Company hereby covenant covenants and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and timely file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), under the Securities Act and to furnish promptly on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to or on such other day as the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreementparties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-TT under the Securities Act;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective, if not effective prior to the execution and delivery of this Agreement, and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD NYSE or any securities exchange exchange, and (iii) such other publicly available information as the Underwriters Representatives may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of 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) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gi) the Company will not file with the Commission the Prospectus or any amendment or supplement to furnish the Prospectus or any amendment to the Registration Statement unless the Representatives received a reasonable period of time to review any such proposed amendment or supplement and consented to the filing thereof, which consent shall not be unreasonably withheld, and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible; upon the request of the Representatives or counsel for the Underwriters, the Company will promptly prepare and file with the Commission, in accordance with the rules and regulations of the Commission, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible; if required, the Company will file any amendment or supplement to the Prospectus with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act; the Company has not and will not distribute, prior to the later of the final Closing Time or the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares other than a Preliminary Prospectus, the Prospectus or the Registration Statement;
(j) to furnish promptly to each Representative, without charge, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) foregoing as the Representatives may reasonably request and (iii) so long as delivery of a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act Act, copies of each Preliminary Prospectus or the Securities Act Regulations, as many copies of Prospectus or any Preliminary Prospectus amendment or supplement thereto in such quantities and the Prospectus and any amendments thereof and supplements thereto at such places as the Representatives may reasonably request.;
(hk) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(il) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end last day of the fiscal quarter first occurring thirteenth month after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jm) to list the Shares on the NYSE and, so long as the Company is publicly held, to use its best efforts to effect and maintain the listing or quotation of the Capital Securities Shares on the NASDAQ NYSE, the Nasdaq National Market or a comparable national securities exchange or automated quotation system and to file with the NASDAQ National Market such entity all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations listed for which are reported by the NASDAQ National Markettrading or quoted on such exchange or automated quotation system;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lo) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof, or (C) the issuance by the Company of shares of Common Stock to employees or directors of the Company or any Subsidiary or as dividends on the Common Stock or the Company’s Class B Common Stock, (D) the issuance by the Company of any options pursuant to the Company’s currently effective stock option and incentive plans, or (E) the issuance by the Company of shares of Common Stock as consideration for the purchase of any business or assets by the Company or any Subsidiary;
(mp) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(q) to cause each executive officer, and director and use its best efforts to cause each beneficial owner of more than 5% of the Company’s Common Stock to furnish to the Representatives, prior to the first Date of Delivery, their respective Lock-Up Agreement;
(r) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event; and
(ns) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Levitt Corp)
Certain Covenants. The Trust Borrower covenants and agrees with Lender for the Company hereby covenant and agree with each Underwriter as followsbenefit of Lender that:
(a) 6.4.1 Borrower has and will have good and merchantable title to furnish all of its assets, including the Collateral, in each case as from time to time owned or acquired by it, and shall keep the Collateral free and clear of all Liens, other than those granted to Lender. Borrower will defend such information as may title against the claims and demands of all Persons whomsoever.
6.4.2 Borrower will faithfully preserve and protect Lender's Liens in the Collateral and will, at its own cost and expense, cause said Liens to be required perfected and otherwise continued perfected, and for such purpose Borrower will from time to cooperate in qualifying time at the Capital Securities for offering request of Lender and sale under at the securities or blue sky laws expense of such states as the Representatives may designate Borrower, make, execute, acknowledge and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters deliver, and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)or record, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created cause to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, filed or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichrecorded, in the judgment proper filing places, all such instruments, documents and notices, including without limitation financing statements and continuation statements, as Lender may deem necessary or advisable from time to time in order to perfect and continue perfected said security interest. Borrower will do all such other acts and things and make, execute, acknowledge and deliver all such other instruments and documents, including without limitation further security agreements, pledges, endorsements, assignments and notices, as Lender may deem necessary or advisable from time to time in order to perfect and preserve the priority of the Trust said Liens as a first Lien on and the Company, would require the making of any change security interest in the Prospectus then being used so that Collateral prior to the Prospectus would not include an untrue statement rights of a material fact or omit to state a material fact required to be stated all other Persons therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable6.4.3 Borrower will not, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesLender, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly borrow or indirectly prior permit any Person to termination of borrow against the underwriting syndicate contemplated by Collateral other than the Loan to Borrower from Lender pursuant to this Agreement; (ii) create, incur, assume or suffer to exist any action designed Lien with respect to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or Collateral; (iii) pay permit any levy or agree attachment to pay be made against any of the Collateral except any levy or attachment relating to this Agreement; or (iv) permit any financing statement to be on file with respect to any person any compensation for soliciting any order to purchase any other securities of the Company; andCollateral, except financing statements in favor of Lender.
(n) that the provisions 6.4.4 Risk of loss of, damage to or destruction of the engagement letter agreement dated March 5, 1999, between Collateral is and shall remain upon Borrower. Borrower will insure the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Collateral as provided in Section 5.3
Appears in 1 contract
Sources: Loan and Security Agreement (Crown Laboratories Inc /De/)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthat:
(a) to The Company will furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital Securities;Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares).
(b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will use its commercially reasonable efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The Company will prepare the Prospectus in a form reasonably approved by the Underwriters Representative and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;T.
(cd) to The Company will advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;.
(de) The Company will furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent may not be unreasonably withheld) prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto.
(f) The Company will comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable.
(g) The Company shall advise the Representatives immediately, confirming such advice in writing, Representative promptly of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening threatening, in writing or otherwise, of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;writing after notice thereof.
(eh) to Unless available on ▇▇▇▇▇, the Company will furnish to the Underwriters at the request of the Representative, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Shares, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters Representative may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company in its reasonable discretion.
(fi) to The Company will advise the Underwriters Representative promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus or the Disclosure Package then being used so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as may so amended or supplemented will not, in the light of the circumstances when it is so delivered (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule), be necessary to reflect misleading or, in the case of any such change Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;.
(gj) Unless available on ▇▇▇▇▇, the Company will furnish promptly to furnish the Representatives and counsel for the UnderwritersRepresentative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.
(hk) The Company will furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (i) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(l) The Company will apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in each Preliminary Prospectus and the Prospectus;.
(im) to The Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;.
(jn) to The Company will use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market AMEX and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;thereon.
(ko) to The Company will engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;Shares.
(lp) The Company will use its best efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code, so long as the Board of Trustees elects that the Company qualify as a REIT. The Board of Trustees has no present intention to change the Company’s election to qualify as a REIT.
(q) The Company will conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act.
(r) The Company will refrain, during a period of 90 days from the date of this Agreement, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities of the Trust or the Company substantially similar to the Capital Securities Preferred Shares or any securities convertible into or exercisable or exchangeable for Preferred Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Preferred Shares, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Shares or such other securities;, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder.
(ms) to The Company will not itself, and will use its best efforts to cause its officers, directors directors, manager and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nt) If, at any time during the 60-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Preferred Shares, or common beneficial interest into which the Preferred Shares are Convertible, has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith consult with the Representative concerning the advisability and substance of a press release or other public statement, responding to or commenting on such rumor, publication or event and, subject to any reasonable objection by the Company, to prepare and disseminate (in further consultation with the Representative) a press release or other public statement, responding to or commenting on such rumor, publication or event.
(u) The Company will actively take reasonable steps to ensure that it will be in material compliance with the applicable provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ & Co., Inc. shall survive Act and rules and regulations promulgated thereunder upon the execution and delivery effectiveness of this Agreement and the consummation of the transactions contemplated herebysuch provisions.
Appears in 1 contract
Sources: Underwriting Agreement (American Mortgage Acceptance Co)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Notes for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesNotes; PROVIDED that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Notes); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus make available to you in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters you may reasonably request for the purposes contemplated by the Securities Act; in case you are required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Notes, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(d) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, and to promptly notify you of such filing;
(e) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Notes may commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(f) to furnish to the Underwriters you for a period of five three years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; PROVIDED, HOWEVER, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(fg) to advise the Underwriters you promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Notes is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to you promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(i) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ij) signed copies to furnish to you one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein);
(k) to furnish to you as early as practicable prior to the time of purchase but not later than two business days prior thereto, (ii) copies a copy of any document incorporated by reference in the Prospectus (including exhibits thereto) latest available unaudited interim consolidated financial statements, if any, of the Company and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(d) hereof;
(hl) to apply the net proceeds of from the sale of the Capital Securities and Notes in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(m) to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders you and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableissuance, but in any event not later than the end sale and delivery of the fiscal quarter first occurring after Notes by the first anniversary Company, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements and the Indenture and the reproduction and/or printing and furnishing of copies of each thereof to you and to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of your counsel) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to you and to dealers and (v) the filing for review of the public offering of the Notes by the NASDR (including the legal fees and filing fees and other disbursements of your counsel with respect thereto), (vi) any listing of the Notes on any securities exchange and any registration thereof under the Exchange Act, (vii) the fees and expenses of the Trustee and its counsel, (viii) the approval of the Notes by DTC for "book entry" transfer, (ix) the rating of the Notes by rating agencies and (x) the performance of the Company's other obligations under this Agreement;
(n) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (a)(vii) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act; and
(o) to not, without the prior written consent of UBS Warburg LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in form, at the option 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, complying including the filing (or participation in the filing) of a registration statement with the provisions Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 158 Section 16 of the Securities Act RegulationsExchange Act, any debt securities issued or guaranteed by the Company (other than the Notes) covering a or publicly announce an intention to effect any such transaction, during the period of 12 months beginning after from the effective date of the Registration Statement;hereof through and including December 31, 2001; and
(jp) to use its best efforts to effect and maintain the quotation continue to qualify as a REIT under Sections 856 through 860 of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyCode.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthat:
(a) to The Company will furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital Securities;Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares).
(b) to The Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to The Company will advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;.
(d) to The Company will advise the Representatives immediately, confirming such advice in writing, Representative promptly of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, Preliminary Prospectus or Prospectus Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;.
(e) to The Company will furnish to the Underwriters at the request of the Representative, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to The Company will advise the Underwriters Representative promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;.
(g) The Company will furnish promptly to furnish the Representatives and counsel for the UnderwritersRepresentative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(h) The Company will furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) The Company will apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to The Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;.
(jk) to The Company will use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;thereon.
(kl) to The Company will engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;Shares.
(lm) The Company will use its best efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code.
(n) The Company will conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act.
(o) The Company will refrain, during a period of 30 days from the date of this Agreement, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Preferred Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Stock or such other securities;, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder.
(mp) to The Company will not itself, and will use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nq) If, at any time during the 30-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Preferred Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, responding to or commenting on such rumor, publication or event.
(r) The Company will actively take reasonable steps to ensure that the it will be in compliance with other applicable provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ & Co., Inc. shall survive Act and rules and regulations promulgated thereunder upon the execution and delivery effectiveness of this Agreement and the consummation of the transactions contemplated herebysuch provisions.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. The Trust Borrower covenants and agrees with Lender for the Company hereby covenant and agree with each Underwriter as followsbenefit of Lender that:
(a) 4.4.1 Borrower has and will have good and merchantable title to furnish all of its assets, including the Collateral, in each case as from time to time owned or acquired by it, and shall keep the Collateral free and clear of all Liens, other than those granted to Lender and those pursuant to the Lease. Borrower will defend such information as may title against the claims and demands of all Persons whomsoever.
4.4.2 Borrower will faithfully preserve and protect Lender's Liens in the Collateral and will, at its own cost and expense, cause said Liens to be required perfected and otherwise continued perfected, and for such purpose Borrower will from time to cooperate in qualifying time at the Capital Securities for offering request of Lender and sale under at the securities or blue sky laws expense of such states as the Representatives may designate Borrower, make, execute, acknowledge and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters deliver, and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)or record, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created cause to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, filed or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichrecorded, in the judgment proper filing places, all such instruments, documents and notices, including without limitation financing statements and continuation statements, as Lender may deem necessary or advisable from time to time in order to perfect and continue perfected said security interest. Borrower will do all such other acts and things and make, execute, acknowledge and deliver all such other instruments and documents, including without limitation further security agreements, pledges, endorsements, assignments and notices, as Lender may deem necessary or advisable from time to time in order to perfect and preserve the priority of the Trust said Liens as a first and the Company, would require the making of any change only Lien on and security interest in the Prospectus then being used so that Collateral prior to the Prospectus would not include an untrue statement rights of a material fact or omit to state a material fact required to be stated all other Persons therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable4.4.3 Borrower will not, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesLender, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly borrow or indirectly prior permit any Person to termination of borrow against the underwriting syndicate contemplated by Collateral other than the Loan to Borrower from Lender pursuant to this Agreement; (ii) create, incur, assume or suffer to exist any action designed Lien with respect to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase Collateral except as provided herein or pay anyone any compensation for soliciting purchases of pursuant to the Capital Securities or Lease; (iii) pay permit any levy or agree attachment to pay be made against any of the Collateral except any levy or attachment relating to this Agreement; or (iv) permit any financing statement to be on file with respect to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions Collateral, except financing statements in favor of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Equalnet Holding Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as follows:Underwriter: -----------------
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writingpromptly, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market American Stock Exchange and to file with the NASDAQ National Market American Stock Exchange all documents and notices required by the NASDAQ National Market American Stock Exchange of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAmerican Stock Exchange;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an "investment company" or an entity "controlled" by an investment company within the meaning of the Investment Company Act;
(o) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. ("FBR"), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or other instrument granted under the Company's 1997 Stock Option and Awards Plan, as amended (the "Option Plan"), (C) any shares of Common Stock issuable by the Company upon the conversion of securities or the exercise of warrants outstanding on the date hereof and referred to in the Prospectus, and (D) the grant of any option or other instrument to purchase or acquire shares of Common Stock of the Company under the Option Plan and Awards Plan;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsresponding to or commenting on such rumor, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. (a) The Trust and Company covenants with the Company hereby covenant and agree with each Underwriter Agent as follows:
(ai) The Company will not at any time file or make any amendment to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as , the Underwriters may reasonably request Preliminary Prospectus or the Prospectus of which the Agent shall not have previously been advised and have previously been furnished a copy, or to which the Agent or counsel for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;Agent shall reasonably object.
(cii) The Company will notify the Agent, promptly after it shall receive notice thereof, of the time when the contemplated post-effective amendment to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective or when any supplement to the Prospectus has been filed.
(iii) The Company will prepare and when timely file with the Commission under Rule 424(b) of the 1933 Act Regulations, if required, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement, including any post-effective amendment thereto becomes effective under thereto, in reliance on Rule 430A of the Securities 1933 Act Regulations;Regulations or otherwise.
(div) to The Company will advise the Representatives immediatelyAgent, confirming such advice in writingpromptly after it has received notice thereof, of (i) the receipt of any comments fromof the SEC with respect to the Post-Effective Amendment, or of any request by, of the Commission SEC for amendments or supplements to further amendment of the Registration Statement or for supplement to the Prospectus or for any additional information with respect theretoinformation, or (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution or threat of any proceedings for that purpose; the Company will provide the Agent with copies of all correspondence related thereto; and the Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of any the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(v) The Company will deliver or cause to be delivered to the Agent, without charge, from time to time during the period commencing on the date hereof and continuing until the earlier of (A) the termination or expiration of the Offering or (B) the termination of the employment of the Agent pursuant to Section 8 of this Agreement (the "Offering Period"), such number of copies of the Registration Statement, Preliminary Prospectus or Prospectus (as supplemented or amended) as the Agent may reasonably request. The Company consents to the use of the Preliminary Prospectus and Prospectus by the Agent in connection with the Offering and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith.
(vi) The Company will use its best efforts to comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the transactions contemplated in this Agreement and in the Prospectus. If, at any time during the Offering Period, or when a Preliminary Prospectus or Prospectus is required by the 1933 Act to be delivered in connection with offers or sales of the suspension Shares, any event shall occur or condition exist as a result of which it is necessary, in the qualification reasonable opinion of counsel for the Capital Securities Agent or counsel for offering or sale in any jurisdictionthe Company, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Prospectus in order that the Preliminary Prospectus or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would will not include an 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, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered, not misleadingor if it shall be necessary, and, during in the reasonable opinion of either such time, to prepare and promptly furnish to the Underwritercounsel, at any such time to amend the Trust's and Preliminary Prospectus or Prospectus or amend or supplement the Company's expensePreliminary Prospectus or Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare such amendments amendment or supplements to such Prospectus supplement as may be necessary to reflect any correct such change untrue statement or omission or to make the Preliminary Prospectus or Prospectus comply with such requirements.
(vii) The Company will use its commercially reasonable efforts to qualify the Shares for offering and sale, or to exempt the Shares from registration, under the applicable securities laws of such states and other jurisdictions as the Agent may reasonably designate and to furnish maintain such qualifications or exemptions in effect for a period of not less than one year from the Effective Date; provided, however, that the Company shall not be obligated to the Underwriters file any general consent to service of process or to qualify as a copy foreign corporation in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives statements and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, reports as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act laws of each jurisdiction in which the Shares have been qualified or the Securities Act Regulations, exempted as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestabove provided.
(hviii) to apply During the net proceeds term of the sale of Offering, the Capital Securities Company will not issue any press releases or other communications directly or indirectly and the Debentures in accordance will hold no press conferences with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and respect to the Representatives as soon as practicableCompany, but in any event not later than the end financial condition, results of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (operations, business properties, assets or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option liabilities of the Company, complying with or the provisions of Rule 158 offering of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainShares, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesAgent, except as otherwise required by law.
(b) The Agent covenants with the Company that the Agent shall remain a registered selling agent in all such jurisdictions in which the Company is relying on such registration for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities sale of the Trust Shares until the Offering is consummated or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyterminated.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) to furnish such information as may be required The Company shall at all times reserve for issuance and otherwise to cooperate in qualifying the Capital Securities for offering keep available out of its authorized and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required unissued capital Stock, solely for the distribution purpose of providing for the Capital Securities;exercise of this Warrant, such number of shares of Warrant Stock as shall from time to time be sufficient therefor.
(b) The Company will not, by amendment of its Certificate of Incorporation or Bylaws or through reorganization, consolidation, merger, amalgamation, sale of assets or otherwise, avoid or seek to prepare avoid the Prospectus in a form approved by observance or performance of any of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery terms of this Agreement and to furnish promptly Warrant. Without limiting the foregoing, the Company (and with respect to i) will not increase the initial delivery par value of such Prospectus, not later than 10:00 a.m. (New York City time) on any shares receivable upon the day following the execution and delivery exercise of this AgreementWarrant above the amount payable therefor upon such exercise and (ii) to the Underwriters will take all such action as many copies of the Prospectus (may be necessary or of the Prospectus as amended or supplemented if the Trust and appropriate in order that the Company shall have made any amendments or supplements thereto after may validly and legally issue fully paid and nonassessable shares of Warrant Stock upon the effective date exercise of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;this Warrant.
(c) Upon issuance of this Warrant, PFG shall be made a party to advise those certain Second Amended and Restated Investors’ Rights Agreement, Second Amended and Restated Co-Sale and First Refusal Agreement and Third Amended and Restated Voting Agreement, each dated as of October 25, 2004 (the Representatives promptly “Stockholder Agreements”), by appropriate amendment to each Stockholder Agreement whereby the Holder shall be entitled to the rights and (if requested by obligations afforded therein to other holders of Series B Preferred Stock; provided that the Representatives) Holder shall not be entitled to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments fromrights, or any request bysubject to such obligations, until this Warrant is exercised. Notwithstanding the foregoing, until such time as this Warrant is exercised or converted, the Commission for amendments or supplements to terms of this Warrant shall control the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness rights and obligations of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust Holder and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Warrant (Comverge, Inc.)
Certain Covenants. The Trust and the Company hereby covenant hereby, jointly and severally, agree with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying any filings required with respect to the Capital Securities for offering Preferred Securities, the Preferred Guarantee and sale the Debentures under the securities or "blue sky sky" laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securitiesdesignate;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Preferred Securities may commence, the Trust and the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following the execution and delivery of this Agreement Securities Act and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(cd) to ▇▇▇▇ly with the requirements of Rule 430A of the Securities Act Regulations, if and as applicable, and to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives immediately, confirming such advice in writing, Representative immediately of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, thereto or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Preferred Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority Governmental Authority should issue any such order, to make every use commercially reasonable effort efforts to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Representative promptly of the lifting or removal of such order; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockthe Preferred Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company Trust or the Trust Company with the CommissionCommission (other than reports filed via EDGAR), the NASD or any securities exchange and (iii) such other information infor▇▇▇▇▇n as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or Trust, the Company or any of the Subsidiaries within the time during which a Prospectus relating to the Capital Preferred Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of 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 Securities Act and the Securities Act Regulations;
(h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Trust, the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gi) to furnish promptly to the Representatives and counsel for the Underwriters, without charge, (i) Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(hj) to apply the net proceeds of the sale of the Capital Preferred Securities, the Common Securities and the Debentures in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ik) in the case of the Company, to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than forty-five (45) days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jl) for so long as the Preferred Securities or the Debentures shall remain outstanding, to fulfill all registration, reporting and filing requirements under the Exchange Act as applicable to companies having a class of securities registered under Section 12(b) or 12(g) thereof;
(m) for so long as the Preferred Securities are outstanding, to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Preferred Securities on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in on the over-the-counter market NYSE; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to promptly effect the listing of the Debentures on the NYSE or other national securities exchange or automated quotation system on which the Preferred Securities are then listed, to have the Debentures promptly registered under the Exchange Act and quotations to maintain such listing for which are reported by as long as the NASDAQ National MarketDebentures remain outstanding;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Preferred Securities;
(lo) to prepare and file any instruments required to be filed by the Trust or the Company in order to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC;
(p) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any Preferred Securities or Debentures (or any equity or debt securities of the Trust or the Company substantially similar to the Capital Preferred Securities or Debentures, respectively), including any guarantee of such beneficial interests or substantially similar securities, or any securities convertible into or exercisable or exchangeable for Preferred Securities or Debentures (or any equity or debt securities substantially similar to the Preferred Securities or Debentures, respectively) or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right economic consequence of ownership of Preferred Securities or Debentures (or any equity or debt securities substantially similar to receive the Preferred Securities or Debentures, respectively), whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Securities or Debentures (or any equity or debt securities substantially similar to the Preferred Securities or Debentures, respectively) or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Preferred Securities or Debentures to be sold hereunder;
(mq) in the case of the Company, to issue the Preferred Guarantee and the Debentures concurrently with the issuance and sale of the Preferred Securities as contemplated herein;
(r) prior to the Closing Time (and, if applicable, any Date of Delivery), not to, and to use its best efforts to cause its their respective trustees, officers, directors directors, partners, members and affiliates affiliates, as applicable, not to, directly or indirectly, issue any press release or other communication or hold any press conference with respect to the financial results of the Company or the Subsidiaries or the offering of the Preferred Securities which the Representative shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and the Representative shall not have reasonably objected thereto;
(s) not to, and to use its best efforts to cause their respective trustees, officers, directors, partners, members and affiliates, as applicable, not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Trust or the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Preferred Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Preferred Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Trust or the Company;
(t) that the Trust and the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(u) that the Trust and the Company will not invest or otherwise use the proceeds received by the Trust or the Company from its sale of the Preferred Securities or the Debentures, as the case may be, in such a manner as would require the Trust, the Company or any Subsidiary to register as an investment company under the Investment Company Act; and
(nv) that not to voluntarily claim and to actively resist any attempts to claim the provisions benefit of any usury laws against the holders of the engagement letter agreement dated March 5, 1999, between Preferred Securities or the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyDebentures.
Appears in 1 contract
Sources: Underwriting Agreement (Westcoast Hospitality Capital Trust)
Certain Covenants. The Trust Each Issuer jointly and severally covenants and agrees with the Company hereby covenant and agree with each Underwriter as followsInitial Purchasers that:
(ai) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made make any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Preliminary Memorandum or Prospectus or for additional information the Final Memorandum that may be necessary in connection with respect thereto, or (ii) the issuance resale of the Securities by the Commission of Initial Purchasers for such Memorandum not to contain any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading or to comply with applicable laws, and, during rules or regulations.
(ii) Each Issuer will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of such time, to prepare jurisdictions as the Initial Purchasers may designate and promptly furnish to the Underwriter, at the Trust's and the Company's expense, will continue such amendments or supplements to such Prospectus qualifications in effect for as long as may be necessary to reflect complete the resale of the Securities by the Initial Purchasers; provided, however, that in connection therewith no Issuer shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any such change and jurisdiction or, except at the expense of the Initial Purchasers, to keep any state qualification effective after one year.
(iii) furnish to the Underwriters Initial Purchasers a copy reasonable number of such proposed amendment or supplement before filing any copies of such amendment or supplement with the Commission;supplement.
(giv) to furnish the Representatives and counsel for the UnderwritersThe Issuers will, without charge, (i) signed copies of provide to the Registration Statement, as initially filed with Initial Purchasers and to counsel for the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of the Preliminary Memorandum or the Final Memorandum or any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request.
(hv) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(vi) Neither the Company nor any of its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Act of the Securities.
(vii) The Company will not, and will not permit any of its subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(viii) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ix) The Company will use its best efforts to (i) permit the Securities to be designated PORTAL securities in accordance with the rules and regula- 19 -19- tions adopted by the NASD relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(x) The Company will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum.
(ixi) to make generally available to its security holders and Prior to the Representatives Closing Date, the Issuers will furnish to the Initial Purchasers, as soon as practicable, but in any event not later than they have been prepared by or are available to the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expenseIssuers, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose copy of any additional securities unaudited interim consolidated financial statements of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedmanits subsidiaries, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive for any period subsequent to the execution and delivery of this Agreement and period covered by the consummation of most recent financial statements appearing in the transactions contemplated herebyFinal Memorandum.
Appears in 1 contract
Certain Covenants. The Trust Company and the Company hereby covenant Guarantors, jointly and severally, agree with each Underwriter as followsthe Initial Purchasers:
(a) to furnish such information to the Initial Purchasers promptly, without charge, during the period referred to in paragraph (c) below, as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution many copies of the Capital SecuritiesOffering Circular and any amendments and supplements thereto as it may reasonably request;
(b) that, during such period after the date hereof and prior to prepare the Prospectus in a form approved completion of the distribution of the Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Circular (including by means of any filings with the Commission made pursuant to the Exchange Act or Prospectus the Exchange Act Regulations) and to file no will not effect such amendment or supplement without the consent of the Representatives, not to be unreasonably withheld, except that nothing contained in this Section 5(b) shall prohibit the Company from filing with the Commission any report or schedule which the Representatives Company, on the advice of outside counsel, believes is required to be filed in order to comply with applicable law. Neither the consent of the Representatives, nor the Representatives’ delivery of any such amendment or supplement, shall reasonably object constitute a waiver of any of the conditions set forth in writing;
(e) to furnish Section 7 hereof. If at any time prior to the Underwriters for completion of the distribution of the Securities by the Initial Purchasers, the Company has issued or shall have issued any written communication, which would be deemed a period “free writing prospectus” as defined in Rule 405 under the Securities Act if the placement of five years from the date of Securities contemplated by this Agreement were conducted as a public offering made pursuant to a registration statement filed with the Commission under the Securities Act (a “Supplemental Offering Document”), and there occurred or occurs an event or development as a result of which such Supplemental Offering Document conflicted or would conflict with the information contained in the Disclosure Package or the Final Circular or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will (i) as soon as available, copies notify the Representatives of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, the same; (ii) subject to the requirements of this paragraph (b) of this Section 5, will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, an amendment or supplement that will correct such statement or omission; and (iii) will supply any supplemented or amended Supplemental Offering Document to the Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as soon as practicable after may be reasonably requested. Clause (i) of the filing thereoffirst Section of this paragraph (b) does not apply to statements in or omission from any document in the Disclosure Package, copies of all reports filed by any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Trust with Guarantors by or on behalf of the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesInitial Purchasers specifically for use therein;
(fc) that, if at any time prior to advise the Underwriters promptly completion of the happening sale of the Securities by the Initial Purchasers, any event known to occurs as a result of which the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichFinal Circular, in the judgment of the Trust and the Companyas then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, andor if it should be necessary to amend or supplement the Final Circular to comply with applicable law, during such time, to prepare and the Company will promptly furnish (i) notify the Representatives of the same; (ii) subject to the Underwriterrequirements of paragraph (b) of this Section 5 will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, at an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Final Circular to the Trust's Initial Purchasers and counsel for the Company's expense, Initial Purchasers without charge in such amendments or supplements to such Prospectus quantities as may be necessary reasonably requested. Clause (i) of the first Section of this paragraph (c) does not apply to reflect statements in or omission from any document in the Disclosure Package, any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Guarantors by or on behalf of the Initial Purchasers specifically for use therein;
(d) to cooperate with the Representatives for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives reasonably may designate and will maintain such qualifications in effect as long as reasonably requested by the Representatives for the sale of the Securities by the Initial Purchasers; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such change jurisdiction where it is not then so subject. The Company will promptly advise the Representatives of the receipt by the Company of any written notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(e) to use commercially reasonable efforts to do and perform all things reasonably required to be done and performed by it under this Agreement and the Transaction Documents prior to or after the Closing Date and to furnish satisfy all conditions precedent on their part to the Underwriters a copy obligations of such proposed amendment the Initial Purchasers to purchase and accept delivery of the Securities;
(f) that none of the Company, the Guarantors or supplement before filing any such amendment of their respective Affiliates, nor any person acting on its or supplement with their behalf (other than the CommissionInitial Purchasers or any of their respective Affiliates, as to whom the Company and the Guarantors express no representations or agreements) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities under the Securities Act;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies that none of the Registration StatementCompany, the Guarantors or any of their respective Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as initially filed to whom the Company and the Guarantors express no opinion) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Commission, and of all amendments or supplements thereto Securities;
(including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iiih) so long as delivery any of a prospectus by an Underwriter or dealer may be required by the Securities Act or are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act RegulationsAct, at any time that the Company is not then subject to Section 13 or 15(d) of the Exchange Act, to provide at the Company’s expense to each holder of the Securities and to each prospective purchaser (as many copies designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any Preliminary Prospectus and information required to be provided by Rule 144A(d)(4) under the Prospectus and any amendments thereof and supplements thereto as Securities Act;
(i) to cooperate with the Representatives may reasonably request.and use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC;
(hj) to apply the net proceeds of from the sale of the Capital Securities and by the Debentures Company in accordance with the statements under the caption "“Use of Proceeds" ” in the Prospectus;
(i) to make generally available to its security holders Disclosure Package and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketFinal Circular;
(k) not to engage take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company and maintain, at its expense, a registrar and transfer agent for the Capital Guarantors to facilitate the sale or resale of the Securities;
(l) in connection with the offer and sale of the Securities, not to offer Securities or any other securities convertible into or exchangeable or exercisable or redeemable for the Securities in a manner in violation of the Securities Act;
(m) not to distribute any prospectus or other offering material, other than the Disclosure Package and the Final Circular, in connection with the offer and sale of the Securities;
(n) to refrain during a period of 60 days from the date of the Offering Circular, without the prior written consent of Citigroup Global Markets Inc., from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, voluntarily making any public announcement of a disposition or transfer, or otherwise disposing of or transferring (or entering into any transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any Securities, or any securities convertible into or exercisable or exchangeable for the Securities or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a period registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of 180 NRF, (ii) a registration statement on Form S-3 relating to the shares of Common Stock issuable upon exchange of exchangeable notes issued by the Operating Partnership or any other subsidiary, including the Securities; (iii) a universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by NRF, provided that NRF will not sell any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to such registration statement within 60 days after from the date of the Final Circular, and (iii) a registration statement on Form S-8 with respect to grants of stock options, restricted stock, LTIP Units or other stock based awards to employees, consultants or directors of NRF pursuant to an employee benefit plan in existence on the date hereof), or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Securities whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be issued hereunder, (B) the issuance of Common Stock by NRF upon exchange or repurchase of the Securities under this Agreement, (C) securities issued in connection with employee benefit plans, stock option plans, long-term incentive plan, direct stock purchase plans and/or distribution reinvestment plans existing at the date of this Agreement, (D) any securities issued by NRF upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to directly or indirectly in the Disclosure Package and the Final Circular, (E) grants of stock options, restricted stock or LTIP Units to employees, consultants or directors of NRF or its Subsidiaries pursuant to an employee benefit plan of NRF in existence on the date hereof and described in the Disclosure Package and the Final Circular, provided that the grantees thereof agree not to sell, offer, issue, sell, contract to sell dispose of or otherwise dispose transfer any such stock options (or the shares underlying such options), restricted stock or LTIP Units or Securities during such 60-day period without the prior written consent of Citigroup Global Markets Inc. on behalf of the Initial Purchasers, (F) any Common Stock issued by NRF upon redemption of any additional securities of the Trust OP Units, (G) the issuance of Common Stock or units of the Company in connection with the acquisition of assets in a transaction exempt from the requirements of the Securities Act or (H) the issuance of Common Stock by NRF upon exchange of the 7.25% Exchangeable Notes, the 7.50% Exchangeable Notes or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities11.50% Exchangeable Notes;
(mo) not to, and to use its commercially reasonable best efforts to cause its officers, directors and affiliates not to to, (i1) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the CompanyCompany or NRF, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the CompanyCompany or NRF, to facilitate the sale or resale of any of the Capital Securities, (ii2) sell, bid for, purchase or or, except as provided herein, pay anyone any compensation for soliciting purchases of the Capital Securities or (iii3) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company or NRF;
(p) that NRF will use its best efforts to enable each of NRF and the Private REIT to meet the requirements to qualify as a REIT under the Code until the respective Boards of Directors of NRF or the Private REIT determines that it is no longer in the best interests of NRF or the Private REIT, as the case may be, to qualify as a REIT;
(q) that the transfer restrictions and the other provisions set forth in the Disclosure Package and the Final Circular under the caption “Notice to Investors,” including the legend required thereby, shall apply to the Securities except as otherwise agreed by the Company, the Guarantors and the Representatives;
(r) that NRF will use its commercially reasonable best efforts to list all Underlying Shares issuable upon exchange of the Securities on the NYSE, subject to notice of issuance, for as long as any share of Common Stock is listed on the NYSE;
(s) that NRF will reserve and keep available at all times, free of preemptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue Common Stock upon exchange of the Securities; and
(nt) that the provisions NRF will not, and will not permit any of the engagement letter agreement dated March 5its Affiliates to, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery resell any Securities that have been acquired by any of this Agreement and the consummation of the transactions contemplated herebythem.
Appears in 1 contract
Sources: Purchase Agreement (Northstar Realty Finance Corp.)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, or reimburse the Standby Purchaser for, on behalf of the Arch Communications Group, Inc. MobileMedia Communications, Inc. Page 18 Standby Purchaser, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel) not to exceed $100,000, incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Mobilemedia Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation, to subject itself to taxation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective under the Securities Act or the Securities Act Regulations;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations not later than 10:00 a.m. (New York City time), ) on the day following the execution and delivery of this Agreement or on such other day as the parties hereto may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriters) copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TT and Rule 424;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement that becomes known to the Company, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act Regulations whichif, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) such event or development would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of such event or development any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing;
(il) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hm) during the period referred to in Section 4(h) hereof, (i) to file all documents required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations and (ii) to furnish to each Representative a copy of any document (other than any request for confidential treatment) filed with the Commission the full text of which is not filed via ▇▇▇▇▇;
(n) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(io) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jp) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market Nasdaq and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq;
(kq) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option, right or warrant to purchase or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities security convertible into into, exercisable for or exchangeable for Common Stock or filing any registration statement under the Securities Act with respect to any of the foregoing (other than the registration statement on Form S-8 described in the Prospectus and the Disclosure Package), (ii) entering into any swap or any other arrangement or transaction that represent transfers to another, in whole or in part, directly or indirectly, any of the right to receive economic consequences of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) filing or causing to be filed a registration statement under the Securities Act, including any amendment thereto, with respect to the registration of any shares of Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock or any other security of the Company (other than the registration statement on Form S-8 described in the Prospectus and the Disclosure Package) or (iv) publicly disclosing the intention to do any of the foregoing. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, and the 180-day restricted period described in the preceding sentence will be extended if: (1) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period, in which case the restrictions described above will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event, unless such extension is waived in writing by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.;
(ms) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, Company to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nt) to cause each stockholder, officer and director of the Company to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(u) that the provisions of Sections 2, 3, 4(a), 4(b) and 9-19 (inclusive) of the engagement letter agreement dated March 5November 16, 1999, 2007 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein;
(v) if, at any time during the 90-day period after the date of the Prospectus, any publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such publication or event;
(w) that the Company will comply with all of the provisions of any undertakings in the Registration Statement; and
(x) that the Company (i) will comply with all applicable securities and other applicable laws, rules and regulations, including FINRA rules and regulations, in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
Appears in 1 contract
Sources: Underwriting Agreement (Patriot Risk Management, Inc.)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as follows:Underwriter: -----------------
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(hi) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file with the NASDAQ Nasdaq National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National Market;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mn) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(no) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsreasonably satisfactory to the Representative, ▇▇▇▇▇▇ & Co.responding to or commenting on such rumor, Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Innovative Solutions & Support Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective under the Securities Act or the Securities Act Regulations;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), of the Securities Act Regulations on the day following the execution and delivery of this Agreement or on such other day as the parties hereto may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriters) copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TT and Rule 424;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement that becomes known to the Company, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(fh) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act Regulations whichif, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) such event or development would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of such event or development any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; provided, that the Company’s obligations under this subsection (h) shall terminate upon the later of (1) the final Option Closing Time and (2) the completion of the underwriters’ initial distribution of shares, but in no event shall it continue for later than three months after the Closing Time.
(i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives after advice by counsel, be required by the Securities Act or requested by the Commission;
(gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing;
(ik) to furnish promptly upon request to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(im) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) other than warrants to be issued at the Closing Time as described in the Prospectus and the Disclosure Package, to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesFBR Capital Markets & Co., for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option, right or warrant to purchase or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), directly or indirectly, any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities security convertible into into, exercisable for or exchangeable for Common Stock or filing any registration statement under the Securities Act with respect to any of the foregoing (other than a registration statement on Form S-8 that represent is described in the right Prospectus and the Disclosure Package), (ii) entering into any swap or any other arrangement or transaction that transfers to receive another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) filing or causing to be filed a registration statement under the Securities Act, including any amendment thereto, with respect to the registration of any shares of Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock or any other security of the Company or (iv) publicly disclosing the intention to do any of the foregoing. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any grant of options to purchase Common Stock, or any issuance of shares of restricted Common Stock or other equity based awards, pursuant to the Company’s 2010 Omnibus Incentive Plan described in the Prospectus, and the 180-day restricted period described in the preceding sentence will be extended if: (1) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period, in which case the restrictions described above will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event, unless such extension is waived in writing by FBR Capital Markets & Co.;
(mq) not to, and to use its best commercially reasonable efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, Company to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nr) to cause each shareholder, executive officer and director of the Company to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(s) that the provisions of the engagement letter agreement dated March 5May 7, 19992010, as amended, supplemented or modified from time to time, between the Company and Friedman, Billings, ▇▇▇▇▇▇ FBR Capital Markets & Co., Inc. shall survive which specifically provide for termination after the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, shall terminate after the execution and delivery of this Agreement and the consummation of the transactions contemplated herein;
(t) that the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(u) except for the Issuer Free Writing Prospectuses identified in Schedule II hereto, and any electronic road show relating to the public offering of the Shares contemplated herein, the Company will not, without the prior consent of the Representatives, prepare, use or refer to any Free Writing Prospectus; and
(v) the Company is taking such steps as are necessary to ensure that it will be in compliance with other applicable corporate governance requirements set forth in the NYSE’s listing standards not currently in effect as of the date hereof but that will become effective subsequent to the date hereof, taking into account any applicable grace periods.
Appears in 1 contract
Certain Covenants. 4.1. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and to file such Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writingpromptly, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, Preliminary Prospectus or Prospectus Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements to such the Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriterspromptly to each Representative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketthereon;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act;
(o) to refrain, during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) the registration and sale of the Shares in accordance with the terms of the Registration Rights Agreement, (C) any shares of Common Stock issued by the Company upon the exercise of an option issued under the Company’s 2003 Employee Stock Incentive Plan or 2003 Outside Advisors Stock Incentive Plan, (D) issuances of options or grants of restricted stock under the Company’s 2003 Employee Stock Incentive Plan or 2003 Outside Advisors Stock Incentive Plan, or (E) any shares of Common Stock issued by the Company in accordance with the Management Agreement as described in the Prospectus;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, between to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release, reasonably satisfactory to the Representatives, or other public statement, responding to or commenting on such rumor, publication or event.
4.2. Each Selling Stockholder hereby agrees with each Underwriter:
(a) to deliver to the Representatives prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States Person) or Form W-9 (if the Selling Stockholder is a United States Person);
(b) to advise the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation Underwriters promptly of the transactions happening of any event known to the Selling Stockholder within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations that, in the judgment of the Selling Stockholder, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(c) not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated herebyby this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or that may cause or result in, or that might in the future 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, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(d) to cooperate to the extent reasonably necessary to cause any amendments to the Registration Statement to become effective and to perform all covenants and conditions contemplated to be performed by the Selling Stockholder prior to the Closing Time under this Agreement; and
(e) to pay or cause to be paid all transfer taxes with respect to the Initial Shares to be sold by such Selling Stockholder to the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Luminent Mortgage Capital Inc)
Certain Covenants. (a) The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(ai) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(bii) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(iii) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. 4:30 p.m. (New York City time), ) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree, and to furnish promptly (promptly, and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. 4:30 p.m. (New York City time) on the day following the execution and delivery of this Agreement) , or on such other day as the parties may mutually agree, to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(civ) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(dv) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(evi) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as availableAgreement, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) furnish to the Underwriters as soon as practicable after the filing thereof, copies of all reports reports, if any, filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesNASD;
(fvii) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters, copies in such quantities and at such locations as the Representative may reasonably request of 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, and so that the Prospectus will comply with the law;
(viii) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may be required by the Securities Act or requested by the Commission;
(gix) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and obtain the consent of the Representative to the filing, without chargewhich consent shall not be unreasonably withheld, delayed or conditioned;
(ix) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto to the Registration Statement, as filed with the Commission after the date hereof (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference the foregoing as the Representative may reasonably request;
(xi) During the period referred to in paragraph (vi) above to file all documents required to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hxii) to apply the net proceeds of from the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ixiii) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event Representative not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jxiv) to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange;
(kxv) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lxvi) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus (C) Shares of Common Stock issued pursuant to the Company's 2004 Stock Incentive Plan upon completion of the transactions contemplated herein as disclosed in the Prospectus or upon approval of the compensation committee of the Company's Board of Directors or (D) shares of Common Stock issued by the Company in connection with any merger, acquisition, share exchange or other business combination transaction approved by the Company's Board of Directors, as long as such shares are restricted as to resale for at least the 180 day period referred to above;
(mxvii) Prior to termination of the underwriting syndicate contemplated by this Agreement, not to itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(xviii) to cause each 1% or greater stockholder, if any, and each executive officer and director (and each director nominee named in the Prospectus) of the Company, each of whom are listed on Schedule D-1 to Exhibit D attached hereto, to furnish to the Representative, prior to the first Date of Delivery, a lock-up letter agreement substantially in the form of Exhibit D hereto.
(xix) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $12 million which shall apply to the offering contemplated herein;
(xx) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to consult with the Representative concerning whether a press release or other public statement responding to or commenting on such rumor, publication or event is appropriate and to consult with the Representative concerning the substance of any such press release or public statement, provided, however, that, as long as the Company has satisfied its obligations under this subparagraph (xx), the final decisions regarding whether to disseminate any such press release or other public statement, and the content of any such press release or public statement, shall rest with the Company;
(xxi) that the Company will comply with all of the provisions of any undertakings in the Registration Statement; and
(nxxii) that the provisions Company will continue to use its best efforts to meet the requirements to qualify as a REIT under the Code; and
(xxiii) that the Company will use its best efforts to consummate its acquisition of NYMC pursuant to the Contribution Agreement at the Closing Time with respect to the sale of the engagement letter agreement dated March 5, 1999, between Initial Shares pursuant to this Agreement.
(xxiv) that the Company (i) will comply with all securities and Friedmanother applicable laws, Billingsrules and regulations, including without limitation, the rules and regulations of the NASD that are applicable to the Company, in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(xxv) that one of the members of the Audit Committee of the Board of Directors of the Company will satisfy the requirements of the Sarbanes-Oxley Act applicable to the Company's "audit committee ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and ▇▇▇l expert" as defined therein.
(b) The Founding Members hereby agree with each Underwriter to use their best efforts to cause the consummation of the transactions contemplated herebyCompany's acquisition of NYMC pursuant to the Contribution Agreement at the Closing Time with respect to the sale of the Initial Shares pursuant to this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (New York Mortgage Trust Inc)
Certain Covenants. The Trust Company and the Company Operating Partnership hereby covenant and agree with each Underwriter as followsthe Underwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Underwriter may designate and to maintain such qualifications in effect so as long as required requested by the Underwriter for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction;
(b) to prepare the Prospectus in a form approved by the Underwriters Underwriter and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise furnish a copy of each proposed Free Writing Prospectus to the Representatives promptly Underwriter and (if requested by counsel for the RepresentativesUnderwriter and obtain the consent of the Underwriter prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act RegulationsAct, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule I hereto;
(d) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(e) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters Underwriter promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Underwriter or counsel for the Underwriter, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at Underwriter copies of the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company’s own expense to the Underwriter and to dealers, copies in such quantities and at such locations as the Underwriter may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(g) to furnish file promptly with the Representatives and counsel for the Underwriters, without charge, (i) signed copies of Commission any amendment or supplement to the Registration Statement, as initially filed with any Preliminary Prospectus, the CommissionProspectus or any Issuer Free Writing Prospectus that may, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery judgment of a prospectus by an Underwriter the Company or dealer may the Underwriter, be required by the Securities Act or requested by the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Commission;
(h) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(ij) to the Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), Underwriter an earnings statement complying with or statements of the Company and the Subsidiaries which will satisfy, on a timely basis, the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of and Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAct;
(k) to engage not to, and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to, prior to the Closing Time (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nl) that to use its best efforts to meet the provisions requirements to qualify as a REIT under the Code for each of its taxable years until such time as the board of directors of the engagement letter agreement dated March 5, 1999, between Company determined that it is no longer in the best interests of the Company and Friedmanto qualify as a REIT.
(m) to refrain, Billingsfrom the date hereof until 30 days after the date of the Prospectus, ▇▇▇▇▇▇ & Co.without the prior written consent of the Underwriter, Inc. shall survive from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the execution and sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), the Preferred Stock or any series of preferred stock of the Company that is pari passu in right of the payment of dividends, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the any securities described in clause (i) of this Section 4(m), whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of this Agreement and Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to: (x) the consummation Shares to be sold hereunder or (y) the filing of any registration statement or amendment or supplement thereto (including any prospectus filed pursuant to Rule 424(b) under the Securities Act) in satisfaction of its obligations to the current holders of the transactions contemplated herebyPreferred Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Prime, Inc.)
Certain Covenants. (a) The Trust and Company covenants with the Company hereby covenant and agree with each Underwriter Agent as follows:
(ai) The Company will not at any time file or make any amendment to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as , the Underwriters may reasonably request Preliminary Prospectus or the Prospectus of which the Agent shall not have previously been advised and have previously been furnished a copy, or to which the Agent or counsel for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;Agent shall reasonably object.
(cii) to advise The Company will notify the Representatives Agent, promptly and (if requested by after it shall receive notice thereof, of the Representatives) to confirm such advice in writing, time when the Registration Statement has become effective and will promptly notify the Agent after it shall have received notice thereof of the time when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(iii) The Company will prepare and timely file with the Commission under Rule 424(b) of the 1933 Act Regulations, if required, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the 1933 Act Regulations or otherwise.
(iv) The Company will advise the Agent, promptly after it has received notice thereof, of any comments of the SEC with respect to the Registration Statement, of any request of the SEC for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information with respect theretoinformation, or (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution or threat of any proceedings for that purpose; the Company will provide the Agent with copies of all correspondence related thereto; and the Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of any the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(v) The Company will deliver or cause to be delivered to the Agent, without charge, from time to time during the period commencing on the date hereof and continuing until the earlier of (A) the termination or expiration of the Offering or (B) the termination of the employment of the Agent pursuant to Section 2 of this Agreement (the "Offering Period"), such number of copies of the Registration Statement, Preliminary Prospectus or Prospectus (as supplemented or amended) as the Prospectus, or Agent may reasonably request. The Company consents to the use of the suspension of Preliminary Prospectus and Prospectus by the qualification of Agent and by all dealers in connection with the Capital Securities for offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. The Company will deliver to the Agent at or before the Effective Date two signed copies of the Registration Statement and all amendments thereto, including all exhibits filed therewith or incorporated by reference therein.
(vi) The Company will use its best efforts to comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the offer and sale of the Shares as contemplated in this Agreement and in the Prospectus. If, at any jurisdictiontime during the Offering Period, or when a Preliminary Prospectus or Prospectus is required by the 1933 Act to be delivered in connection with offers or sales of the initiation Shares, any event shall occur or threatening condition exist as a result of any proceedings which it is necessary, in the reasonable opinion of counsel for any of such purposes andthe Agent or counsel for the Company, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Prospectus in order that the Preliminary Prospectus or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would will not include an 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, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered, not misleadingor if it shall be necessary, and, during in the reasonable opinion of either such time, to prepare and promptly furnish to the Underwritercounsel, at any such time to amend the Trust's and Preliminary Prospectus or Prospectus or amend or supplement the Company's expensePreliminary Prospectus or Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare such amendments amendment or supplements to such Prospectus supplement as may be necessary to reflect any correct such change untrue statement or omission or to make the Preliminary Prospectus or Prospectus comply with such requirements.
(vii) The Company will use its commercially reasonable efforts to qualify the Shares for offering and sale, or to exempt the Shares from registration, under the applicable securities laws of such states and other jurisdictions as the Agent may reasonably designate and to furnish maintain such qualifications or exemptions in effect for a period of not less than one year from the Effective Date; provided, however, that the Company shall not be obligated to the Underwriters file any general consent to service of process or to qualify as a copy foreign corporation in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives statements and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, reports as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act laws of each jurisdiction in which the Shares have been qualified or the Securities Act Regulations, exempted as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestabove provided.
(hviii) to apply The Company will use the net proceeds of received by it from the sale of the Capital Securities and Shares in the Debentures manner specified in accordance with the statements Prospectus under the caption "Use of Proceeds" in the Prospectus;."
(iix) For a period of three years after the Closing Time, the Company will furnish to make generally available the Agent copies of all annual reports, quarterly reports and current reports filed with any federal bank regulatory agency or the SEC, and such other documents, reports, proxy statements and information as shall be furnished by the Company to its security holders shareholders generally and to the Representatives shareholders, every material press release in respect to the Company or its affairs that is released or prepared by the Company, and any additional information of a public nature concerning the Company or its business that the Agent may reasonably request.
(x) So long as soon as practicableany Shares remain outstanding, but in any event not later than the Company will furnish to all holders of the Shares copies of its audited financial statements within 120 days of the end of the each fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement year.
(or 90 days if such 12-month period coincides xi) The Company will file with the Company's fiscal year)SEC, an earnings statement complying with the provisions of when due, all securities sales reports due and all other reports required by Section 11(a15(d) of the Securities 1934 Act, as amended (the "1934 Act"), until such time as the Company is permitted by the 1934 Act and the rules and regulations of the SEC thereunder to deregister as a reporting company and the Company does so deregister.
(in formxii) During the Offering Period, at the option Company will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business properties, assets or liabilities of the Company, complying with or the provisions of Rule 158 offering of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainShares, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesAgent, except as otherwise required by law.
(xiii) The Company shall pay the legal fees and related filing fees of counsel to the Company to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Shares as contemplated by the Prospectus, and a copy of each such Blue Sky Survey shall be delivered to the Agent.
(xiv) The Company will, at its expense, upon the issuance of the Shares, prepare and distribute to each of the Agent and counsel to the Agent copies of the Shares as issued and copies of all correspondence or other documents related thereto.
(xv) Except as provided for by this Agreement, during a period of 180 days after from the date the Initial Closing Time occurs, the Company will not, without the prior written consent of this Agreementthe Agent, not to directly or indirectly, offer, issue, sell, contract offer to sell sell, or otherwise dispose of issue any additional securities of the Trust capital stock or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the CompanyShares, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company that are substantially similar to the Shares or that are convertible into capital stock, or sell or grant options, rights, or warrants with respect to any shares of capital stock (other than the grant of options pursuant to option plans or agreements issued pursuant to a stock option plan approved by the Board of Directors of the Company; and).
(nxvi) If required by law or the rules of any electronic trading system or any securities exchange on which the Common Stock or the Shares may be listed, the Company will maintain a transfer agent and a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock or Shares, as the case may be.
(b) The Agent covenants with the Company that the provisions Agent shall remain a registered selling agent in all such jurisdictions in which the Company is relying on such registration for the sale of the engagement letter agreement dated March 5, 1999, between Shares until the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyOffering is consummated or terminated.
Appears in 1 contract
Sources: Sales Agent Agreement (First Community Bank Corp of America)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, [San Francisco and Los Angeles,] as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference, and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange is listed and (iiiiv) such other information as the Underwriters you may reasonably request regarding the Trust, the Company and/or or the Subsidiaries, in each case, as soon as such communications, documents or information becomes available;
(fh) to advise the Underwriters promptly of the happening occurrence of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and furnish promptly furnish to the UnderwriterUnderwriters, at no expense to the Trust's and the Company's expenseUnderwriters, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of 12 months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than 15 months thereafter;
(j) to furnish to its stockholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, stockholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) to furnish to you five signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available quarterly (if available) or dealer may be required monthly unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries, which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(e) hereof;
(hm) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issuance, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any statements of information, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the associated reasonable fees and disbursements of counsel for the Underwriters and (vii) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formp) not to sell, at the offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other shares of the Company, complying with Company that are substantially similar to Common Stock or permit the provisions registration under the Act of Rule 158 any shares of the Securities Act Regulations) covering Common Stock for a period of 12 months beginning 90 days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over"Lock-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainup Period"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of UBSW, except for (i) the Representatives, for a period registration of 180 days after the date of Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus, such issued Common Stock not to offer, issue, sell, contract be disposed of by the recipients thereof prior to sell or otherwise dispose of any additional securities the expiration of the Trust or Lock-up Period and (iii) the Company substantially similar issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Capital Securities or any securities convertible into or exchangeable for or that represent Registration Statement and the right to receive any such similar securities;Prospectus; and
(mq) to use its best efforts to cause its officers, directors the Shares to be listed for quotation and affiliates not to (i) take, directly or indirectly prior to termination maintain the listing of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate Common Stock on the price National Association of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, Dealers Automated Quotation National Market System (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby"NASDAQ").
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with h▇▇▇▇▇ ▇▇▇▇▇▇ ▇ith each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and to file such Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writingpromptly, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, Preliminary Prospectus or Prospectus Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement Agreement, (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiariesexecution and delivery of non-disclosure agreements in favor of the Company;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such the Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriterspromptly to each Representative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation and listing of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketthereon;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an "investment company" or an entity "controlled" by an investment company within the meaning of the Investment Company Act;
(o) to refrain, until June 11, 2004, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not Ramsey & Co., Inc. ("FBR"), from (i) offering, pledging, selling, cont▇▇▇▇▇▇g to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) the registration and sale of the Shares in accordance with the terms of the Registration Rights Agreement, (C) any shares of Common Stock issued by the Company upon the exercise of an option issued under the Company's 2003 Employee Stock Incentive Plan or 2003 Outside Advisors Stock Incentive Plan, (D) issuances of options or grants of restricted stock under the Company's 2003 Employee Stock Incentive Plan or 2003 Outside Advisors Stock Incentive Plan, or (E) any shares of Common Stock issued by the Company in accordance with the Management Agreement as described in the Prospectus;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release, Billingsreasonably satisfactory to the Representatives, ▇▇▇▇▇▇ & Co.or other public statement, Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyresponding to or commenting on such rumor, publication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Luminent Mortgage Capital Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as follows:Underwriter: -----------------
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(c) to advise ▇▇▇▇▇e the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market American Stock Exchange and to file with the NASDAQ National Market American Stock Exchange all documents and notices required by the NASDAQ National Market American Stock Exchange of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAmerican Stock Exchange;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to ensure that the Company will not be an "investment company" or an entity "controlled" by an investment company within the meaning of the Investment Company Act;
(o) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not Ramsey & Co., Inc. ("FBR"), from (i) offering, pledging, selling, cont▇▇▇▇▇▇g to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, and (C) the grant of any option to purchase shares of Common Stock of the Company under the Company's 1997 Stock Option Plan and Awards Plan;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsreasonably satisfactory to the Representatives, ▇▇▇▇▇▇ & Co.responding to or commenting on such rumor, Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. I. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to execute a general consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible, and to advise the Representatives promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly promptly, and to furnish the Representatives with a copy for its review prior to filing, of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(g) to furnish the Representatives promptly to each Representative and counsel for the Underwriters, without charge, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) foregoing as the Representatives may reasonably request, and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and or supplements thereto as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and Shares by the Debentures Company in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file make all filings required under applicable securities laws (including any required registration under the Exchange Act) and with the NASDAQ National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National Market and to take all other action necessary to ensure the listing of the Shares and the other Common Stock of the Company on the Nasdaq National Market;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities equity security of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exercisable or exchangeable for equity securities of the Company, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of equity securities of the Company, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities;, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus.
(mn) to not itself and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(no) to file timely and accurate reports in accordance with the provisions of Florida Statutes Section 517.075, or any successor provision, and any regulation promulgated thereunder, if at any time after the effective date of the Registration Statement, the Company or any of its affiliates is engaging in business with the government of Cuba or any person or affiliate located in Cuba;
(p) upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, service marks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the "License"); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;
(q) that the provisions of the engagement letter agreement dated March 5April 3, 1999, 2002 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. (the "Engagement Letter") shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and
(r) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event.
II. The Selling Stockholder hereby agrees with each Underwriter to deliver to the Representatives prior to the Closing Time a properly completed and executed United States Treasury Department Form W-9.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) FAREISI Subsidiary 8 hereby covenants and ----------------- agrees that, upon the request of EXPERIAN at any time prior to furnish the Effective Date, it shall transfer and convey to NEWCO on the Effective Date or promptly thereafter, all of the real property (or any portion thereof so requested) owned by it and listed under its name on Part 1(I) of Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such information as may be required deeds in recordable form, endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities conveyance, duly executed by FAREISI Subsidiary 8 or blue sky laws of such states other Person, as the Representatives case may designate be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to maintain such qualifications in effect so long as required for the distribution real property, free and clear of the Capital Securities;any Encumbrance of any kind, except FAREISI Permitted Encumbrances.
(b) FAREISI Subsidiary 7 hereby covenants and agrees that, upon the request of EXPERIAN at any time prior to prepare the Prospectus in a form approved by the Underwriters Effective Date, it shall transfer and file such Prospectus with the Commission pursuant convey to Rule 424(b) not later than 10:00 a.m. (New York City time), NEWCO on the day following Effective Date or promptly thereafter, all of the execution assets (or any portion thereof so requested) owned by it and delivery listed under its name on Part 1(H) of this Agreement Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and conveyance, duly executed by FAREISI Subsidiary 7 or such other Person, as the case may be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to furnish promptly (such assets, free and with respect to the initial delivery clear of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery any Encumbrance of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇kind, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestFAREISI Permitted Encumbrances.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Contribution and Joint Venture Agreement (First American Financial Corp)
Certain Covenants. The Trust and the Company hereby covenant hereby, jointly and severally, agree with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying any filings required with respect to the Capital Securities for offering Preferred Securities, the Preferred Guarantee and sale the Debentures under the securities or "blue sky sky" laws of such states jurisdictions (both domestic and foreign) as the Representatives Underwriters may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securitiesdesignate;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Preferred Securities may commence, the Trust and the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following the execution and delivery of this Agreement Securities Act and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(cd) to comply with the requirements of Rule 430A of the Securities Act Regulations, if and as applicable, and to advise the Representatives Underwriters promptly and (if requested by the RepresentativesUnderwriters) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives immediately, confirming such advice in writing, Underwriters immediately of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, thereto or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Preferred Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority Governmental Authority should issue any such order, to make every use commercially reasonable effort efforts to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Underwriters promptly of the lifting or removal of such order; to advise the Representatives Underwriters promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and to file no such amendment or supplement to which the Representatives Underwriters shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockthe Preferred Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company Trust or the Trust Company with the CommissionCommission (other than reports filed via EDGAR), the NASD or any securities exchange and (iii) such other information infor▇▇▇▇▇n as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or Trust, the Company or any of the Subsidiaries within the time during which a Prospectus relating to the Capital Preferred Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Underwriters or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Underwriters may from time to time reasonably request of 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 Securities Act and the Securities Act Regulations;
(h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Trust, the Company or the Underwriters, be required by the Securities Act or requested by the Commission;
(gi) to furnish promptly to the Representatives and counsel for the Underwriters, without charge, (i) Underwriters a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Underwriters may reasonably request.;
(hj) to apply the net proceeds of the sale of the Capital Preferred Securities, the Common Securities and the Debentures in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ik) in the case of the Company, to make generally available to its security holders and to deliver to the Representatives Underwriters as soon as practicable, but in any event not later than forty-five (45) days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jl) for so long as the Preferred Securities or the Debentures shall remain outstanding, to fulfill all registration, reporting and filing requirements under the Exchange Act as applicable to companies having a class of securities registered under Section 12(b) or 12(g) thereof;
(m) for so long as the Preferred Securities are outstanding, to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Preferred Securities on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in on the over-the-counter market NYSE; if the Preferred Securities are exchanged for Debentures, the Company will use its commercially reasonable efforts to promptly effect the listing of the Debentures on the NYSE or other national securities exchange or automated quotation system on which the Preferred Securities are then listed, to have the Debentures promptly registered under the Exchange Act and quotations to maintain such listing for which are reported by as long as the NASDAQ National MarketDebentures remain outstanding;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Preferred Securities;
(lo) to prepare and file any instruments required to be filed by the Trust or the Company in order to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC;
(p) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesUnderwriters, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any Preferred Securities or Debentures (or any equity or debt securities of the Trust or the Company substantially similar to the Capital Preferred Securities or Debentures, respectively), including any guarantee of such beneficial interests or substantially similar securities, or any securities convertible into or exercisable or exchangeable for Preferred Securities or Debentures (or any equity or debt securities substantially similar to the Preferred Securities or Debentures, respectively) or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right economic consequence of ownership of Preferred Securities or Debentures (or any equity or debt securities substantially similar to receive the Preferred Securities or Debentures, respectively), whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Securities or Debentures (or any equity or debt securities substantially similar to the Preferred Securities or Debentures, respectively) or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Preferred Securities or Debentures to be sold hereunder;
(mq) in the case of the Company, to issue the Preferred Guarantee and the Debentures concurrently with the issuance and sale of the Preferred Securities as contemplated herein;
(r) prior to the Closing Time (and, if applicable, any Date of Delivery), not to, and to use its best efforts to cause its their respective trustees, officers, directors directors, partners, members and affiliates affiliates, as applicable, not to, directly or indirectly, issue any press release or other communication or hold any press conference with respect to the financial results of the Company or the Subsidiaries or the offering of the Preferred Securities which the Underwriters shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and the Underwriters shall not have reasonably objected thereto;
(s) not to, and to use its best efforts to cause their respective trustees, officers, directors, partners, members and affiliates, as applicable, not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Trust or the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Preferred Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Preferred Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Trust or the Company;
(t) that the Trust and the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(u) that the Trust and the Company will not invest or otherwise use the proceeds received by the Trust or the Company from its sale of the Preferred Securities or the Debentures, as the case may be, in such a manner as would require the Trust, the Company or any Subsidiary to register as an investment company under the Investment Company Act; and
(nv) that not to voluntarily claim and to actively resist any attempts to claim the provisions benefit of any usury laws against the holders of the engagement letter agreement dated March 5, 1999, between Preferred Securities or the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyDebentures.
Appears in 1 contract
Sources: Underwriting Agreement (Westcoast Hospitality Capital Trust)
Certain Covenants. The Trust and Each of the Company and LLC hereby covenant and agree with each Underwriter as follows:agrees: -----------------
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or its subsidiaries, the Company and/or the Subsidiariesin each case as soon as such communications, documents or information becomes available;
(fh) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company or LLC within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and furnish promptly furnish to the Underwriterunderwriters, at no expense to the Trust's and the Company's expenseUnderwriters, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than 15 months thereafter;
(j) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) signed to furnish to you four conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and sufficient conformed copies of the foregoing (iiiother than exhibits) so long as delivery for distribution of a prospectus by an Underwriter copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available quarterly (if available) or dealer may be required monthly unaudited interim consolidated financial statements, if any, of the Company and of LLC, which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(b) hereof;
(hm) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issue, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the associated fees and disbursements of counsel for the Underwriters, and (vii) the performance of the Company's and LLC's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (h) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration StatementExchange Act;
(jp) not to use its best efforts sell, offer or agree to effect and maintain the quotation sell, contract to sell, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other shares of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities Company that are traded in substantially similar to Common Stock or permit the over-the-counter market and quotations for which are reported by registration under the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent Act of the Representatives, any shares of Common Stock for a period of 180 days after the date hereof (the "Lock-up Period"), without the prior written consent of Warburg Dillon Read LLC (WDR), except for (i) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, not (ii) the issuance in connection with the Reorganization, as described in the Registration Statement and the Prospectus, of Common Stock and rights to offerpurchase Common Stock to persons who have entered into lock-up agreements with the Underwriters as contemplated by Section 3(v) hereof and (iii) the grant of options to purchase Common Stock disclosed in the Registration Statement and the Prospectus as to be outstanding, issue, sell, contract granted to sell or otherwise dispose of any additional securities officers of the Trust or the Company substantially similar and not exercisable prior to the Capital Securities or any securities convertible into or exchangeable for or that represent expiration of the right to receive any such similar securitiesLock-up Period;
(mq) to use its their best efforts to cause its officers, directors and affiliates not the Common Stock to be listed for quotation on the National Association of Securities Dealers Automated Quotation National Market System (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company"NASDAQ"); and
(nr) that to effect the provisions of Reorganization and implement all attendant agreements and activities, on the engagement letter agreement dated March 5, 1999, between terms set forth and as otherwise described in the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law;
(g) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(h) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(i) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(j) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iie) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hk) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(il) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jm) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National The Nasdaq SmallCap Market and to file with the NASDAQ National The Nasdaq SmallCap Market all documents and notices required by the NASDAQ National Market it of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National quoted on The Nasdaq SmallCap Market;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lo) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mp) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nq) to cause each officer and director of the Company and certain stockholders specified to the Company by the Representative to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters;
(r) that the provisions of the engagement letter agreement dated March 5July 15, 1999, 2003 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. the Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein;
(s) that the Company shall (i) obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $ million which shall apply to the offering contemplated herein and (ii) cause the Representative to be added to such policy such that up to $ of its expenses pursuant to Section 9(a) shall be paid directly by such insurer and (iii) shall cause the Representative to be added as an additional insured to such policy in respect of the offering contemplated herein;
(t) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and
(u) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Pacific Premier Bancorp Inc)
Certain Covenants. The Trust Company agrees with the Underwriters, the Forward Seller and the Company hereby covenant and agree with each Underwriter as followsForward Counterparty:
(a) to furnish such information as may be required and otherwise to cooperate in each case qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Representatives and the Forward Seller of the receipt by the Company of any written notification with respect to (i) the suspension of the qualification of the Shares for sale in any jurisdiction or (ii) the initiation or threatening of any proceeding for such purpose;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives and the Forward Seller, promptly and, if requested by the Representatives or the Forward Seller, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and the Forward Seller and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following Securities Act within the execution and delivery of this Agreement time period set forth in Rule 424(b) and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery date of this Agreementdetermination of the price per Share to be paid by the public in connection with the offering of the Shares or on such other day as the parties may mutually agree) to the Underwriters as many and the Forward Seller copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters and the Forward Seller may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters and the Forward Seller will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives and the Forward Seller promptly (and (if requested required by the Representatives) , to confirm such advice in writing, ) when the Registration Statement has become effective and when any post-effective amendment thereto becomes has become effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and the Forward Seller and counsel for the Underwriters and obtain the reasonable consent of the Representatives and the Forward Seller prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediatelyRepresentatives, the Forward Seller and the Forward Counterparty immediately and, if requested by the Representatives, confirming such advice in writing, of (i1) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus, the Disclosure Package, or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii2) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Representatives, the Forward Seller and the Forward Counterparty promptly of the lifting or removal of such order; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representatives, the Forward Seller and the Forward Counterparty, upon advice of counsel after discussion with the Company and counsel for the Company, shall reasonably object in writing;
(eh) to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations, except to the extent such filing fees have been paid prior to the date hereof;
(i) unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish (i) to the Underwriters for a period of five two (2) years from the date of this Agreement and (iii) to the Forward Seller and the Forward Counterparty, until expiration or termination of the Forward Sale Agreement, (1) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii2) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD Commission or any national securities exchange on which any class of securities of the Company are listed; and (iii3) such other additional information as the Underwriters Underwriters, the Forward Seller and the Forward Counterparty from time to time may reasonably request regarding (any financial statements so requested to be on a consolidated basis to the Trust, extent the accounts of the Company and/or and its subsidiaries are consolidated in reports furnished to its security holders generally or to the SubsidiariesCommission);
(fj) to advise the Underwriters Underwriters, the Forward Seller and the Forward Counterparty promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act or the Securities Act Regulations which, in the judgment of the Trust and the Company, (1) would require the making of any change result in the Prospectus then being used so that or the Prospectus would not include Disclosure Package containing an untrue statement of a material fact or omit omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) would result in any Issuer Free Writing Prospectus conflicting with the information contained in the Registration Statement relating to the Shares or the Prospectus, or (3) would make it necessary to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to promptly prepare and promptly furnish to the UnderwriterUnderwriters, at the Trust's Forward Seller and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to Forward Counterparty copies of the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters, the Forward Seller and the Forward Counterparty and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement or the Prospectus, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations;
(k) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company, be required by the Securities Act or requested by the Commission;
(gl) except with respect to filings by the Company under the Exchange Act, during the period of time a Prospectus is required to be delivered in connection with the sale of Shares hereunder, prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters, without charge, Underwriters and obtain the reasonable consent of the Representatives to the filing;
(im) to furnish promptly to the Representatives a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein);
(n) during the period referred to in paragraph (i) above, to furnish to the Representatives and the Forward Seller, not less than two (ii2) copies full business days before filing with the Commission, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as ;
(o) to cooperate with the Representatives may reasonably request.in permitting the Shares to be eligible for clearance and settlement through the facilities of DTC;
(hp) to apply the net proceeds of from the sale of the Capital Securities Company Shares and the Debentures net proceeds due upon settlement of the Forward Sale Agreement in accordance with the statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(iq) to make generally available to its security holders and to deliver to the Representatives and the Forward Seller as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement);
(jr) to use its best commercially reasonable efforts to effect (1) apply to list the Company Shares, to be issued and maintain sold by the quotation Company hereunder as soon as practicable after the date of this Agreement on the NYSE, and (2) apply to list the shares of Common Stock, if any, to be issued upon settlement of the Capital Securities Forward Sale Agreement on the NASDAQ National Market and NYSE prior to the date such shares of Common Stock are to be issued upon such settlement, and, in either case, to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE to effect and maintain the listing of companies that have securities that are traded in the over-the-counter market Initial Shares and quotations for which are reported by the NASDAQ National MarketOption Shares on the NYSE as soon as practicable after the date of this Agreement;
(ks) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesCommon Stock;
(lt) in connection with the offer and sale of the Shares, not to offer shares of Common Stock or any other securities convertible into or exchangeable or exercisable or redeemable for Common Stock in a manner in violation of the Securities Act;
(u) not to distribute any prospectus or other offering material, other than the Registration Statement, the Prospectus and the Disclosure Package, in connection with the offer and sale of the Shares;
(v) to refrain during a period of 30 days from the date of the Prospectus, without the prior written consent of Deutsche Bank Securities Inc., from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, voluntarily making any public announcement of a disposition or transfer, or otherwise disposing of or transferring (or entering into any transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of the Company, (ii) a post-effective amendment to any of the Company’s registration statement on Form S-3 (No. 333-197435), the Company’s registration statement on Form S-3 (No. 333-146679) or the Company’s registration statement on Form S-3 (No. 333-190532), which registration statements relate to the resale of shares of Common Stock issuable upon exchange of the Exchangeable Senior Notes, or a prospectus supplement to the prospectus included in any such registration statement, in any case, for the purposes of naming the selling stockholders who may offer and sell such shares from time to time in the manner described therein, (iii) a period universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by the Company, provided that the Company will not sell any shares of 180 Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to any such registration statement within 30 days after from the date of the Prospectus, and (iv) a registration statement on Form S-8 with respect to grants of stock options, restricted stock or other stock based awards to employees, consultants or directors pursuant to an employee benefit plan in existence on the date hereof, or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) any Company Shares to be issued hereunder, (B) any shares of Common Stock issuable upon settlement of the Forward Sale Agreement or pursuant to an Acceleration Event (as defined in the Forward Sale Agreement), (C) any shares of Common Stock issued by the Company in connection with employee benefit plans, stock option plans, long-term incentive plans, direct stock purchase plans or distribution reinvestment plans existing at the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of (D) any additional securities of the Trust or issued by the Company substantially similar upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior in the Disclosure Package and the Prospectus, (E) grants of stock options, Common Stock or Deferred LTIP Units to termination employees, consultants or directors of the underwriting syndicate contemplated by this Agreement, any action designed Company or its Subsidiaries pursuant to stabilize or manipulate the price an employee benefit plan of the Capital Securities or any security of Company in existence on the Company, or which may cause or result in, or which might date hereof and described in the future reasonably be expected Disclosure Package and the Prospectus, provided that the grantees thereof agree not to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid foroffer, purchase dispose of or pay anyone otherwise transfer any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.such stock opt
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming and to confirm such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries as soon as such communications, the Company and/or the Subsidiariesdocuments or information becomes available;
(fh) to advise the Underwriters promptly of the happening occurrence of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare prepare, file (subject to Section 4(d) hereof) and furnish promptly furnish to the Underwriterunderwriters, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than fifteen (15) months thereafter;
(j) to furnish to its stockholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, stockholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) signed to furnish to you such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) as you shall reasonably request;
(l) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two (iii2) so long as delivery business days prior thereto, a copy of a prospectus by an Underwriter the latest available quarterly (if available) or dealer may be required monthly unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries, which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(e) hereof;
(hm) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issue, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the National Association of Securities Dealers Automated Quotation National Market System ("NASDAQ") and any registration thereof under the Exchange Act, (vi) the review of the public offering of the Shares by the NASD, including the associated filing fees and the reasonable fees and disbursements of counsel for the Underwriters, and (vii) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (h) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formp) not to sell, at the offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or options, warrants or other rights to purchase Common Stock or any other shares of the CompanyCompany that are substantially similar to Common Stock or file a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or options, complying with the provisions of Rule 158 warrants or other rights to purchase Common Stock or any other shares of the Securities Act Regulations) covering Company that are substantially similar to Common Stock for a period of 12 months beginning one hundred and eighty (180) days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over"LOCK-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainUP PERIOD"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of UBSW, except for (i) the Representatives, for a period registration of 180 days after the date of Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters and (iii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of stock option plans described in the Trust or Registration Statement and the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;Prospectus; and
(mq) to use its best efforts to cause its officers, directors and affiliates not the Common Stock to (i) take, directly or indirectly prior to termination of be listed for quotation on the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyNASDAQ.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Offered ADSs for offering and sale sale, or establishing an exemption from such qualification, under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesOffered ADSs, provided that the Company shall not be required to qualify as a foreign corporation, to subject itself to taxation, or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered ADSs);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Offered ADSs may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably practicable and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the business day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the business day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legend and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Offered ADSs for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblereasonably practicable, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Offered ADSs contemplated herein; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five two years from the date of this Agreement Agreement, unless made available to the public on ▇▇▇▇▇ or any successor system, (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockADSs, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Offered ADSs (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication so that the Prospectus Prospectus, Disclosure Package or Written Testing-the-Waters Communication would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication conflicted or would conflict with the information contained in the Registration Statement relating to the Offered ADSs, or (iii) if it is necessary at any time to amend or supplement the Prospectus, the Disclosure Package or any Written Testing- the-Waters Communication, to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication so that the Prospectus, the Disclosure Package or any Written Testing-the-Waters Communication as so amended or supplemented will not, in light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication, conflict with the information contained in the Registration Statement, or so that the Prospectus, the Disclosure Package or Written Testing-the-Waters Communication will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to submit promptly with the Commission any Written Testing-the-Waters Communication, in each case that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or submitting to the Commission any Written Testing-the-Waters Communication, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing;
(il) to furnish promptly to the Representatives a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Offered ADSs in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation of the Capital Securities Offered ADSs on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and with quotations for which are reported by the NASDAQ National MarketNASDAQ;
(kp) to promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Offered ADSs within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 4(r) hereof;
(q) to engage and maintain, at its expense, a registrar and registrar, transfer agent and depositary for the Capital SecuritiesOffered ADSs;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling short, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring or announcing the intention to otherwise dispose of or transfer, (or entering into any additional securities of transaction or device which is designed to, or would reasonably be expected to, result in the Trust disposition by any person at any time in the future of), any ADSs or the Company substantially similar to the Capital Securities Ordinary Shares or any securities convertible into or exercisable or exchangeable for ADSs or Ordinary Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of ADSs or Ordinary Shares, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of ADSs or Ordinary Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Offered ADSs to be sold hereunder (including the Underlying Shares), or (B) any Ordinary Shares issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(ms) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesOffered ADSs, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Offered ADSs or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nt) to cause each stockholder (both with and without giving pro forma effect to the Conversion and the Share Distribution, as defined in the Prospectus), officer and director of the Company to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(u) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $15.0 million which shall apply to the offering contemplated herein;
(v) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the ADSs has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(w) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthat:
(a) to The Company will furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital Securities;Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares).
(b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;T.
(cd) to The Company will advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;.
(de) The Company will furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent may not be unreasonably withheld) prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto.
(f) The Company will comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable.
(g) The Company will advise the Representatives immediately, confirming such advice in writing, Representative promptly of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;.
(eh) to The Company will furnish to the Underwriters at the request of the Representative, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(fi) to The Company will advise the Underwriters Representative promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus or the Disclosure Package then being used so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as may so amended or supplemented will not, in the light of the circumstances when it (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) is so delivered, be necessary to reflect misleading or, in the case of any such change Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;.
(gj) The Company will furnish promptly to furnish the Representatives and counsel for the UnderwritersRepresentative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.
(hk) The Company will furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (i) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(l) The Company will apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;.
(im) to The Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;.
(jn) to The Company will use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;thereon.
(ko) to The Company will engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;Shares.
(lp) The Company will use its best efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code.
(q) The Company will conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act.
(r) The Company will refrain, during a period of 30 days from the date of this Agreement, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Preferred Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Stock or such other securities;, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder.
(ms) to The Company will not itself, and will use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nt) If, at any time during the 30-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Preferred Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, responding to or commenting on such rumor, publication or event.
(u) The Company will actively take reasonable steps to ensure that the it will be in compliance with other applicable provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ & Co., Inc. shall survive Act and rules and regulations promulgated thereunder upon the execution and delivery effectiveness of this Agreement and the consummation of the transactions contemplated herebysuch provisions.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. (I) The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and and, except as may be required by law, to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and obtain the consent of the Representatives to the filing, without charge, which consent will not be unreasonably withheld;
(il) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lq) to refrain, from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (other than a registration statement on Form S-8), or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus or (C) the issuance of any shares of Common Stock, or an agreement entered into to issue shares of Common Stock, in connection with an acquisition of stock or assets of another business, by merger or otherwise, provided that such shares in the aggregate do not exceed, in the aggregate, during the 90 days after the date of the Prospectus, 10% of the number of shares of Common Stock outstanding immediately following the sale of all Shares hereunder and provided further that the Company shall have received from each recipient of such shares (to the extent such shares have been or will be issued on or prior to the date that is 90 days following the date of the Prospectus) a lock-up letter in substantially the form of Exhibit B below;
(mr) not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(ns) that the provisions to cause each officer and director of the engagement Company to furnish to the Representatives, prior to the Initial Sale Time, a letter agreement dated March 5or letters, 1999substantially in the form of Exhibit B hereto, between the Company and except as otherwise approved by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. Inc.;
(t) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall survive occur as a result of which, in the execution reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and delivery after written notice from the Representatives advising the Company to the effect set forth above, to forthwith consult with the Representatives concerning the substance of, and consult with the Representatives regarding the dissemination of a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(II) Each Selling Stockholder, severally and not jointly, hereby agrees with each Underwriter:
(a) to deliver to the Representatives prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person, within the meaning of the Code) or Form W-9 (if the Selling Stockholder is a United States person, within the meaning of the Code);
(b) to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto;
(c) if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus and the Disclosure Package has been completed, as determined by the Representatives, such Selling Stockholder has knowledge or becomes aware of the occurrence of any event as a result of which the Registration Statement, as then amended, would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or the Disclosure Package, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, such Selling Stockholder will promptly notify the Company and the Representatives;
(d) to deliver to the Company or the Underwriters such documentation as the Company or the Underwriters or any of their respective counsel may reasonably request in order to effectuate any of the provisions of this Agreement Agreement; and
(e) to not prepare or have prepared on its behalf or use or refer to any Free Writing Prospectus and to not distribute any written materials in connection with the consummation offer or sale of the transactions contemplated herebyShares.
Appears in 1 contract
Certain Covenants. The Trust Company covenants that it will at all times from and after the date hereof reserve and keep available such number of its authorized shares of Common Stock, free from all preemptive rights, rights of first refusal or similar rights therein, as will be sufficient to permit the exercise of this Warrant in full. The Company further covenants that, assuming the receipt by the Company hereby covenant and agree with each Underwriter as follows:
(a) to furnish of the consideration therefor, such information shares as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission issued pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery exercise of this Agreement Warrant will, upon issuance, be duly and to furnish promptly (validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and issuance thereof. Promptly after delivery of this Agreement) Warrant, the Company will file with the domestic securities exchange on which the Company's Common Stock is traded (the "Applicable Exchange"), the appropriate notification form for the listing of additional shares in a form reasonably acceptable to the Underwriters as many copies Holder of this Warrant pursuant to the rules and regulations of the Prospectus (or Applicable Exchange in respect of the Prospectus Common Stock issuable upon exercise of this Warrant. For so long as the Company is required to file reports under Section 13 of the Exchange Act (as hereinafter defined), the Company shall file all reports required to be filed by it under the Securities Act of 1933 (as amended, the "Securities Act") and the Securities Exchange Act of 1934 (as amended, the "Exchange Act") and the rules and regulations adopted by the Securities Exchange Commission ("SEC") thereunder and shall take such further action as any holder or holders of Common Stock issuable upon exercise of this Warrant may request, all to the extent required to enable such holder to sell such Common Stock (and all shares issued in respect of such Common Stock) pursuant to (i) Rule 144 adopted by the SEC under the Securities Act (as such rule may be amended from time to time) or supplemented if any similar rule or regulation hereafter adopted by the Trust SEC or (ii) a registration statement on Form S-2 or S-3 or any similar registration form hereafter adopted by the SEC. Upon request in connection with a transfer or registration, the Company shall deliver to any holder of this Warrant a written statement as to whether it has complied with such requirements. Promptly after delivery of this Warrant, the Company will file with the Applicable Exchange the appropriate notification form for the listing of additional shares in a form reasonably acceptable to the holder of this Warrant pursuant to the rules and regulations of the Applicable Exchange in respect of the Common Stock issuable upon exercise of this Warrant and the Company shall have made any amendments or supplements thereto after at all times cause the effective date Common Stock issuable upon exercise of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created this Warrant to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities listed on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyApplicable Exchange.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries as soon as such communications, the Company and/or the Subsidiariesdocuments or information becomes available;
(fh) to advise the Underwriters promptly of the happening occurrence of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, which would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and furnish promptly furnish to the Underwriterunderwriters, at no expense to the Trust's and the Company's expenseUnderwriters, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than 15 months thereafter;
(j) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) signed to furnish to you four conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and sufficient conformed copies of the foregoing (iiiother than exhibits) so long as delivery for distribution of a prospectus by an Underwriter copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available quarterly (if available) or dealer may be required monthly unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries, which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(b) hereof;
(hm) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issue, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the associated reasonable fees and disbursements of counsel for the Underwriters, and (vii) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (h) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration StatementExchange Act;
(jp) not to use its best efforts sell, offer to effect and maintain the quotation sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other shares of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities Company that are traded in substantially similar to Common Stock or permit the over-the-counter market and quotations for which are reported by registration under the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent Act of the Representatives, any shares of Common Stock for a period of 180 days after the date hereof (the "Lock-up Period"), without the prior written consent of UBSW, except for (i) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus, such issued Common Stock not to offer, issue, sell, contract be disposed of by the recipients thereof prior to sell or otherwise dispose of any additional securities the expiration of the Trust or Lock-up Period and (iii) the Company substantially similar issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Capital Securities or any securities convertible into or exchangeable for or that represent Registration Statement and the right to receive any such similar securities;Prospectus; and
(mq) to use its best efforts to cause its officers, directors and affiliates not the Common Stock to be listed for quotation on the National Association of Securities Dealers Automated Quotation National Market System (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby"NASDAQ").
Appears in 1 contract
Sources: Underwriting Agreement (Adesso Healthcare Technology Services Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges ----------------- that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has -------- agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, or reimburse the Standby Purchaser for, on behalf of the Standby Purchaser, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel) not to exceed $100,000, incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Commitment to Purchase Stock and Warrants (Arch Communications Group Inc /De/)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state where it is not now so qualified or required to file a consent;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post- effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time)) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many written and electronic copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under T of the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish comply with the Securities Act and the Securities Act Regulations so as to permit the Underwriters for a period completion of five years from the date distribution of the Shares as contemplated in this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after in the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange Prospectus and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law;
(f) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or the Securities Act Regulations or requested by the Commission;
(g) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and obtain the consent of the Representative to the filing;
(h) at the request of the Representative, to prepare a final term sheet, containing solely a description of final terms of the Shares and the offering thereof, in the form and substance approved by the Representative and attached as Exhibit A hereto and will file such final term sheet with the Commission as soon as practical after the Execution Time, and to file any other Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and will pay any required registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act within the time period required by such rule (without charge, regard to the proviso therein relating to the four business days extension to the payment deadline) and in any event prior to the Closing Date;
(i) to comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending and to retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g) under the Securities Act;
(j) 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 Disclosure Package 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 light of the circumstances then prevailing, not misleading, to give prompt notice thereof to the Representative and, if requested by the Representative, to 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 the foregoing covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in strict conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(k) if so requested by the Representative, to cause to be prepared and delivered, at the Company’s expense, within one business day from the effective date of this Agreement, to the Representatives an “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of the Shares (as used herein, the term “electronic Prospectus” means a form of the most recent Preliminary Prospectus, any Issuer Free Writing Prospectus or the 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 Representative and the other Underwriters to offerees and purchasers of the Shares, (ii) it shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus, as the case may be, and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow investors to store and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally));
(l) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(m) to furnish to the Representative, (ii) copies not less than two business days before filing with the Commission until the termination of the offering of the Shares, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hn) to prepare and file a registration statement on Form 8-A with the Commission covering the Shares at or prior to the Closing;
(o) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ip) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration StatementProspectus is filed pursuant to Rule 424(b);
(jq) to use its best efforts to effect cause the Common Stock and the Shares to be listed on the Nasdaq Global Market and to maintain the quotation of the Capital Securities Common Stock and the Shares on the NASDAQ National Nasdaq Global Market and to file with the NASDAQ National Nasdaq Global Market all documents and notices required by the NASDAQ National Nasdaq Global Market of companies that have securities that are traded in listed on the over-the-counter market Nasdaq Global Market and quotations remain so listed for which are reported at least three years from the Closing Time or for such shorter period as may be approved by the NASDAQ National MarketRepresentative; provided, however, this covenant will be satisfied if the Company elects to list the Common Stock and the Shares on the New York Stock Exchange; provided, further, that if the Company is to be acquired and such acquisition will cause the Common Stock or Shares to be delisted with the Commission, the approval of the Representative will not be needed;
(kr) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(ls) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling (A) any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any Depositary Shares, shares of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Depositary Shares or shares of Common Stock, or (B) any preferred securities of the Company that are similar to the Series A Preferred Stock, including any securities that are convertible into or exchangeable for, or that represent the right to receive receive, any such similar securities, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Depositary Shares or shares of Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Depositary Shares, shares of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof, pursuant to currently outstanding options, (C) up to 100,000 shares of Common Stock issued under an employee stock purchase plan, or (D) the ability of the Company to conduct negotiations to acquire third party entities for shares of Common Stock;
(mt) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nu) that the provisions to cause each director of the engagement letter agreement dated March Company to, and to use its best efforts to cause each 5, 1999, between % or greater stockholder of the Company and Friedmanto, Billingsfurnish to the Representative, ▇▇▇▇▇▇ & Co.prior to the first Date of Delivery, Inc. a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall survive agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the execution and disposition by any person at any time in the future of) any Depositary Shares, shares of Common Stock or securities convertible into or exchangeable for Depositary Shares or Shares of Common Stock, or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Depositary Shares or shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of this Agreement and Depositary Shares, shares of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the consummation date of the transactions contemplated hereby.Prospectus, without the prior written consent of the Representative on behalf of the Underwriters;
(v) during the period when the Prospectus is required to be delivered in connection with sales of the Shares under the Securities Act, the Exchange Act or the Regulations (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act), to file all documents required to be filed with the Commission pursuant to the Exchange Act or the Regulations within the time periods required by the Exchange Act or the Regulations;
(w) to file with
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthe Underwriter:
(ai) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to furnish such information as may the Registration Statement to be required and otherwise to cooperate in qualifying declared effective before the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has become effective;
(bii) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has become effective;
(iii) to prepare the Prospectus in a form approved by the Underwriters Underwriter and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)and Rule 430A, on under the day following Securities Act within the execution and delivery of this Agreement time period set forth in Rule 424(b) and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(civ) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (iA) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or to the information incorporated by reference therein or for additional information with respect thereto, or (iiB) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Pricing Prospectus or the Prospectusany Issuer Free Writing Prospectus or, or in each case, of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes andpurposes, and if the Commission or any other government agency or authority Governmental Authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Underwriter promptly of the lifting or removal of such order; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or Prospectus and and, unless required by law, to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(ev) to furnish to the Underwriters Underwriter for a period of five two years from the date of this Agreement (iA) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockshareholders, (iiB) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or copies of any material reports (collectively, the "Reports") filed by the Company with any securities exchange exchange, and (iiiC) such other publicly available information as the Underwriters Underwriter may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, that the Company and/or shall not be required to furnish to the SubsidiariesUnderwriter any Reports which are obtainable via ▇▇▇▇▇;
(fvi) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company if, within the time during which a Prospectus prospectus relating to the Capital Shares (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act Regulations whichRegulations, it is necessary to amend or supplement any Preliminary Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus to comply with any law, then during such time, to promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriter and to dealers, copies, in such quantities and at such locations as the Underwriter may from time to time reasonably request, of an appropriate supplement to the any Preliminary Prospectus (prior to the availability of the Pricing Prospectus), the Pricing Prospectus or any Issuer Free Writing Prospectus, which in each case 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 or the Pricing Disclosure Package will comply with the Securities Act and the Securities Act Regulations;
(vii) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust Company or the Underwriter, be required by the Securities Act or requested by the Commission;
(viii) not to, without the prior consent of the Underwriter, which consent shall not be unreasonably withheld or denied, (A) make any offer or written communication relating to the Shares that would constitute a "free writing prospectus" as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Exhibit E hereto and any electronic road show previously approved by the Underwriter, or (B) file, refer to, approve, use or authorize the use of any "free writing prospectus" as defined in Rule 405 under the Securities Act with respect to the offering or the Shares. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriter or the Company, would require conflict with the making of any change information in the Prospectus then being used so that Registration Statement or the Prospectus would not as then amended or supplemented or would, in the judgment of the Underwriter or the Company, include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were madeexisting at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Securities Act Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Underwriter promptly and, during such timeif requested by the Underwriter, to prepare and promptly furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Underwriter) that will correct such statement, at the Trust's and the Company's expense, omission or conflict or effect such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commissioncompliance;
(gix) to comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus;
(x) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Underwriter and counsel for the UnderwritersUnderwriter and obtain the consent of the Underwriter to the filing, without charge, which consent will not be unreasonably withheld;
(ixi) signed copies to furnish promptly to the Underwriter a copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Underwriter may reasonably request;
(xii) to furnish to the Underwriter, not less than two full business days before filing with the Commission during the period referred to in subsection (iivi) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hxiii) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares substantially in accordance with the statements under the caption "Use of Proceeds" in the Pricing Prospectus;
(ixiv) to make generally available to its security holders and to the Representatives securityholders as soon as practicable, but in any event not later than 90 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)covered thereby, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying such form as complies with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after not later than the first day of the Company's fiscal quarter next following the "effective date date" (as defined in Rule 158) of the Registration Statement;
(jxv) to cause the Shares to be listed on the AMEX prior to the Closing Time, to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market AMEX and to file with the NASDAQ National Market AMEX all applicable documents and notices required by the NASDAQ National Market AMEX of companies that have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAMEX;
(kxvi) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lxvii) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesUnderwriter, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (A) offering, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of the Trust or the Company substantially similar to the Capital Securities its capital stock or any securities convertible into or exercisable or exchangeable for its capital stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (B) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of its capital stock, whether any such similar swap or transaction described in clause (A) or (B) above is to be settled by delivery of its capital stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (1) the Shares to be sold hereunder, (2) the grant or exercise of any options under, or the issuance of any shares pursuant to, an employee stock option or purchase plan in effect on the date hereof, (3) upon conversion or exchange of convertible or exchangeable securities outstanding on the date hereof, and (4) upon the exercise of options or warrants outstanding on the date hereof, and in each case, as described in the Pricing Prospectus;
(mxviii) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (iA) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (iiB) sellexcept for the Underwriter's compensation, bid foras described in the Prospectus, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iiiC) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(xix) that the Company shall maintain directors and officers liability insurance in the minimum amount of $10 million for a period of at least one year following the offering;
(xx) that prior to the Closing Time or any Date of Delivery, as applicable, except as may be required by applicable laws or regulations or the rules and regulations of the AMEX, neither the Company nor the Subsidiaries will issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company or the Subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or the Subsidiaries, or the offering of the Shares, without the prior written consent of the Underwriter, which shall not be unreasonably withheld;
(xxi) that the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(xxii) that the Company will not be or become an "investment company," as such term is defined in the Investment Company Act;
(xxiii) that the Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain a system of internal control over financial reporting which provide reasonable assurance that (A) transactions are executed in accordance with management's authorization, (B) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company and the Subsidiaries, (C) access to the assets of the Company and the Subsidiaries is permitted only in accordance with management's authorization and (D) the recorded accounts of the assets of the Company and the Subsidiaries are compared with existing assets at reasonable intervals; and
(nxxiv) that the Company and the Subsidiaries will comply with all effective applicable provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyAct.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthe Underwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Underwriter may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters Underwriter and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters Underwriter as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives Underwriter promptly and (if requested by the RepresentativesUnderwriter) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(e) to furnish to the Underwriters Underwriter for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD NASD, The Nasdaq Stock Market, or any securities exchange and (iii) such other information as the Underwriters Underwriter may reasonably request regarding the Trust, Company and the Company and/or the SubsidiariesBank;
(f) to advise the Underwriters Underwriter promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriter promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters Underwriter a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish promptly to the Representatives and counsel for the Underwriters, without charge, (i) Underwriter a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Underwriter may reasonably request;
h) to furnish to each Underwriter, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(hi) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Nasdaq SmallCap Market and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to refrain during a period of 360 days from the date of the Prospectus, without the prior written consent of the RepresentativesUnderwriter, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities of the Trust or the Company substantially similar to the Capital Securities Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Shares, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mn) to refrain from and to use its best efforts to cause its officers, directors and affiliates not to refrain from, (i) taketaking, directly or indirectly prior to termination of the underwriting syndicate transactions contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sellselling, bid bidding for, purchase purchasing or pay paying anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay paying or agree agreeing to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(no) that the provisions of the engagement letter agreement dated March 5, 1999, Engagement Letter by and between the Company and Friedmanthe Underwriter, Billingsdated October ___, ▇▇▇▇▇▇ & Co.2002, Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and
p) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Underwriter the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Underwriter advising the Company to the effect set forth above, to forthwith prepare, consult with the Underwriter concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Underwriter, responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Certain Covenants. The Trust and I. Upon the basis of each Underwriters’ covenants contained herein, the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares), and the Representative will review with the Company the jurisdictions in which the Underwriters intend to offer the Shares;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as promptly as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City a.m., Eastern time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City a.m., Eastern time) , on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(fh) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(ik) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares substantially in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best commercially reasonable efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Nasdaq Stock Market and to file with the NASDAQ National Nasdaq Stock Market all documents and notices required by the NASDAQ National Nasdaq Stock Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Nasdaq Stock Market;
(ko) to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 4(t) hereof;
(p) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lq) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mr) not to, and to use its best commercially reasonable efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(ns) to cause each stockholder, officer and director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters;
(t) that the provisions of the engagement letter agreement dated March 5February 14, 1999, 2018 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. the Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein;
(u) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $5.0 million which shall apply to the offering contemplated herein;
(v) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and
(w) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) Each of Arch and MobileMedia (i) acknowledges that the Debtors have agreed to furnish such provide to the Committee copies of any and all notices, documents or information to be provided by or made available by the Debtors to Arch pursuant to the Merger Agreement or provided by or made available by Arch to the Debtors pursuant to the Merger Agreement, promptly after the receipt or provision thereof by or to the Debtors, as may be required applicable, and otherwise that the Committee, pursuant to cooperate in qualifying the Capital Securities for offering and sale under undertaking attached as Annex II hereto, has agreed to distribute copies of the securities or blue sky laws of such states as same to the Representatives may designate Standby Purchaser and to maintain such qualifications in effect so long as required for take certain other actions and (ii) agrees that the distribution of the Capital Securities;Committee may do so.
(b) to prepare Without limiting the Prospectus in a form approved by generality of the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(bforegoing clause (a) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusSection 10, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act RegulationsArch will, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for before filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under with the Securities Act Regulations;
(d) to advise the Representatives immediatelySEC, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, Standby Purchaser and its counsel copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 including all exhibits thereto) proposed to be filed, will provide the Standby Purchaser and its counsel a reasonable opportunity to review and comment on such Registration Statement and will not file such Registration Statement if the Standby Purchaser shall reasonably object thereto within three calendar days if such 12-month period coincides after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the definitive Proxy Statement in the form filed with the Company's fiscal year)SEC and mailed to Stockholders of Arch and the Registration Statement in the form declared effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of this Section 10, an earnings statement complying Arch will, before filing the Shelf Registration Statement or any pre-effective amendment thereto, furnish to the Standby Purchaser and its counsel copies of the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, proposed to be filed, will provide Standby Purchaser and its counsel with a reasonable opportunity to review and comment on the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, and will not file the Shelf Registration Statement or such pre-effective amendment thereto, as applicable, to which the Standby Purchaser or its counsel shall reasonably object within three business days after the receipt thereof. The Standby Purchaser will furnish to Arch such information regarding the Standby Purchaser and its plan and method of distribution of the Registrable Securities as Arch may reasonably request in writing in connection with the provisions of Section 11(a) preparation of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Shelf Registration Statement;.
(je) to Each of Arch, MobileMedia and the Standby Purchaser will use its reasonable best efforts to effect obtain all approvals, waivers, consents and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices other authorizations required by the NASDAQ National Market Applicable Requirements, including without limitation the applicable requirement of companies that have securities that are traded the HSR Act, necessary in connection with the over-the-counter market and quotations for which are reported performance of this letter agreement by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement Standby Purchaser and the consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay directly to the appropriate Governmental Entity, on behalf of the Standby Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid by the Standby Purchaser in connection with its compliance with the applicable requirements of the HSR Act. In addition, following the Effective Date, Arch will reimburse, promptly upon written request (accompanied by appropriate supporting documentation), costs and expenses (including without limitation reasonable fees and expenses of legal counsel, including a reasonable allocation with respect to the cost of any internal counsel), incurred by the Standby Purchaser in connection with this letter agreement and the transactions contemplated hereby; provided, however, the reimbursable costs and expenses of the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
Appears in 1 contract
Sources: Merger Agreement (Mobilemedia Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writingpromptly, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, Preliminary Prospectus or Prospectus Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriterspromptly to each Representative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market American Stock Exchange (or the New York Stock Exchange if the Common Stock is quoted on such exchange at Closing) and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketthereon;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act;
(o) to refrain, during a period of 30 days from the date of the Prospectus, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or other instrument granted under the Company’s 1997 Stock Option and Awards Plan, as amended (the “Option Plan”), (C) any shares of Common Stock issuable by the Company upon the conversion of securities or the exercise of warrants outstanding on the date hereof and referred to in the Prospectus, (D) the grant of any option or other instrument to purchase or acquire shares of Common Stock of the Company under the Option Plan, and (E) any shares of Common Stock issued by the Company under the Company’s Dividend Reinvestment and Stock Purchase Plan or its 2002 Dividend Reinvestment and Stock Purchase Plan;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nq) that if at any time during the provisions 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsresponding to or commenting on such rumor, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇EDGAR, except to the extent permitted by Regulation S-T;
(cd) to advise ▇▇ ▇dvise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany and the Subsidiaries; provided, that the Company and/or shall not be required to furnish to the SubsidiariesUnderwriters any such reports or communications that have been filed with the Commission and are available on the Commission's EDGAR system;
(fg) to advise the Underwriters promptly of the happening ▇▇▇▇ening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law;
(h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and will not file any such amendment, without charge, supplement or Prospectus to which the Representative reasonably objects;
(ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(k) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; or (C) options to purchase Common Stock that are granted automatically in accordance with the terms of the Company's directors' stock option plan;
(mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(r) to cause certain stockholders, officers and directors of the Company, listed on Schedule IV, to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Annex C hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days, except in the case of Shell for 45 days, from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters; and
(ns) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Certain Covenants. A. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under under, or establishing an exemption from such qualification under, the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications or exemption in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of, or subject itself to taxation as doing business in, any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representative and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), under the Securities Act on or before the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative, which consent shall not be unreasonably withheld or delayed, prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writingwriting prior to such filing (unless required to do so by law);
(eh) to furnish to the Underwriters for a period of five two (2) years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trustexchange, provided, however, that the Company and/or the Subsidiarieswill not be required to furnish reports or other communications or information that is available on ▇▇▇▇▇ or other publicly available electronic means;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at Representative copies of the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company’s own expense, to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and to obtain the consent of the Representative which consent shall not be unreasonably withheld or delayed;
(il) signed to furnish promptly to the Representative such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives Representative may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Initial Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its reasonable best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market Nasdaq, provided that the Company has a sufficient number of stockholders to be eligible to list the Shares on Nasdaq, and if applicable, to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq and to use its reasonable best efforts to maintain the quotation of the Shares on the Nasdaq, and to comply in all material respects with the applicable corporate governance requirements set forth in the NASD’s Nasdaq Marketplace Rules standards in effect from time to time;
(kp) the Company and any of the officers and directors of the Company in their capacities as such, are, and at the Closing Time and any Option Closing Time will be in compliance in all material respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated thereunder that are effective and applicable to the Company on such date;
(q) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the foregoing restrictions do not apply to (a) the issuance and sale of the Initial Shares by the Company to the Underwriters in connection with the public offering contemplated by this Agreement, (b) the filing of amendments or supplements to the Company’s registration statement (Reg. No. 333-133983) (the “Shelf Registration Statement”) relating to the registration of shares of Common Stock pursuant to the Registration Rights Agreement dated April 11, 2006, (c) the filing of a Rule 462(b) Registration Statement, if any, and a registration statement on Form S-8, (d) the issuance or sale of shares of Common Stock or the execution of any agreement to issue shares of Common Stock in connection with the acquisition of stock or assets of another business, by merger or otherwise, provided that the recipients of such shares of Common Stock agree to the same lock-up provisions and the remaining period to which the Company is subject, (e) the issuance of any securities pursuant to the Company’s stock incentive plan, and (f) the issuance of any shares of Common Stock upon the exercise of any options issued pursuant to the Company’s stock incentive plan as described in the Registration Statement;
(ms) not to, and to use its best commercially reasonable efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company;
(t) to cause (i) each executive officer and director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B-1 hereto and (ii) each of the DLJ Funds and CCBM to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B-2 hereto;
(u) that the Company shall have customary directors and officers liability insurance;
(v) if, at any time during the 30-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially adversely affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, consult with the Representative, subject to applicable law, concerning such rumor, publication or event;
(w) that the Company will comply in all material respects with all of the provisions of any undertakings in the Registration Statement; and
(nx) that the provisions Company (i) will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including without limitation, the rules and regulations of the engagement letter agreement dated March 5NASD, 1999in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, between similar taxes or duties or other taxes, if any, incurred by the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive Underwriters in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyDirected Share Program.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Gas Resources, Inc.)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) If the Pledgor shall, at any time and from time to furnish time after the date hereof, acquire any additional capital stock or other Pledged Interests in any Person of the types described in the definition of the term “Pledged Interests,” the same shall be automatically deemed to be Pledged Interests hereunder, and to be pledged to the Lender pursuant to Section 1 and the Pledgor will forthwith pledge and deposit the same with the Lender and deliver to the Lender any certificates therefor, together with undated instruments of transfer or assignment, duly executed in blank and in form and substance reasonably satisfactory to the Lender, together with such information as may be required other certificates and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states instruments as the Representatives Lender may designate reasonably request (including Uniform Commercial Code financing statements or appropriate amendments thereto), and will promptly thereafter deliver to maintain the Lender a fully completed and duly executed amendment to this Agreement in the form of Exhibit A (each, a “Pledge Amendment”) in respect thereof. The Pledgor hereby authorizes the Lender to attach each such qualifications in effect so long as required Pledge Amendment to this Agreement, and agrees that all such Collateral listed on any Pledge Amendment shall for all purposes be deemed Collateral hereunder and shall be subject to the distribution provisions hereof; provided that the failure of the Capital Securities;
(b) Pledgor to prepare the Prospectus in a form approved by the Underwriters execute and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and deliver any Pledge Amendment with respect to any such additional Collateral as required hereinabove shall not impair the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies security interest of the Prospectus (Lender in such Collateral or otherwise adversely affect the rights and remedies of the Prospectus as amended or supplemented if Lender hereunder with respect thereto. Further, the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Pledgor will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of not (i) the receipt of any comments fromchange its name, identity or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockcorporate structure, (ii) as soon as practicable after change its chief executive office from the filing thereoflocation thereof listed on Annex B, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) change the jurisdiction of its incorporation or organization from the jurisdiction listed on Annex B (whether by merger or otherwise), unless in each case the Pledgor has (1) given twenty (20) days’ prior written notice to the Lender of its intention to do so, together with information regarding any such new location and such other information in connection with such proposed action as the Underwriters Lender may reasonably request regarding the Trustrequest, the Company and/or the Subsidiaries;
and (f2) to advise the Underwriters promptly of the happening of any event known delivered to the Trust and/or Lender ten (10) days prior to any such change or removal such documents, instruments and financing statements as may be reasonably required by the Company within the time during which a Prospectus relating Lender, all in form and substance reasonably satisfactory to the Capital Securities is required to be delivered under Lender, paid all necessary filing and recording fees and taxes, and taken all other actions reasonably requested by the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the UnderwriterLender (including, at the Trust's and request of the Company's expenseLender, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish delivery of opinions of counsel reasonably satisfactory to the Underwriters a copy of Lender to the effect that all such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference thereinactions have been taken), (ii) copies of any document incorporated by reference in order to perfect and maintain the Lien upon and security interest in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures Collateral provided for herein in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a3(c).
(b) If any Pledged Interests (whether now owned or hereafter acquired) included in the Collateral are “uncertificated securities” within the meaning of the Uniform Commercial Code or are otherwise not evidenced by any certificate or instrument, the Pledgor will promptly notify the Lender thereof and will promptly take and cause to be taken, and will (if the issuer of such uncertificated securities is a Person other than a Subsidiary of the Pledgor) use commercially reasonable efforts to cause the issuer to take, all actions required under Articles 8 and 9 of the Uniform Commercial Code and any other applicable law, to enable the Lender to acquire “control” of such uncertificated securities (within the meaning of such term under Section 8-106 (or its successor provision) of the Securities Act (in form, at Uniform Commercial Code) and as may be otherwise necessary to perfect the option security interest of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;Lender therein.
(jc) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, The Pledgor will not to offer, issue, sell, contract to sell or otherwise dispose of of, grant any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Companyoption with respect to, or which may cause mortgage, pledge, grant any Lien with respect to or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of otherwise encumber any of the Capital SecuritiesCollateral or any interest therein, (ii) sell, bid for, purchase or pay anyone any compensation except for soliciting purchases the security interest created in favor of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of Lender hereunder and except as may be otherwise expressly permitted in accordance with the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery terms of this Agreement and the consummation Credit Agreement (including any applicable provisions therein regarding delivery of proceeds of sale or disposition to the Lender).
(d) The Pledgor will cause the Pledged Interests in each issuer pledged hereunder to constitute at all times 100% of the transactions contemplated herebycapital stock or other Pledged Interests in such issuer, such that the issuer shall be a direct or indirect wholly owned Subsidiary of the Pledgor and unless the Lender shall have given its prior written consent, the Pledgor will cause or permit any such issuer to issue or sell any new capital stock, any warrants, options or rights to acquire the same, or other Pledged Interests of any nature to any Person other than the Pledgor, or cause, permit or consent to the admission of any other Person as a stockholder, partner or member of any such issuer.
(e) The Pledgor agrees that it will, at its own cost and expense, take any and all actions necessary to warrant and defend the right, title and interest of the Lender in and to the Collateral against the claims and demands of all other Persons.
Appears in 1 contract
Sources: Pledge Agreement (Frankly Inc)
Certain Covenants. (a) The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(ai) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
Shares; PROVIDED that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery except service of this Agreement and to furnish promptly (and process with respect to the initial delivery offering and sale of the Shares); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such Prospectus, not later than 10:00 a.m. purpose;
(ii) to make available to the Underwriters in New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(ciii) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(eiv) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares, and to promptly notify you of such filing;
(v) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(vi) to furnish to you and, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; PROVIDED, HOWEVER, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(fvii) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gviii) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(ix) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ix) signed copies to furnish to you one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter or dealer copy to each of the other Underwriters;
(xi) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be required be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(d) hereof;
(hxii) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(xiii) to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableissuance, but in any event not later than the end sale and delivery of the fiscal quarter first occurring after Shares by the first anniversary Company, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers and (v) the filing for review of the public offering of the Shares by the NASDR (including the legal fees and filing fees and other disbursements of counsel to the Underwriters with respect thereto), (vi) any listing of the Shares on any securities exchange and any registration thereof under the Exchange Act, and (vii) the performance of the Company's other obligations under this Agreement;
(xiv) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (a)(vii) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formxv) not to sell, at the offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the CompanyCompany that are substantially similar to Common Shares or file a registration statement under the Act relating to the offer and sale of any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, complying with the provisions of Rule 158 warrants or other rights to purchase Common Shares or any other shares of the Securities Act Regulations) covering Company that are substantially similar to Common Shares for a period of 12 months beginning ninety (90) days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over"LOCK-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainUP PERIOD"), at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of UBS Warburg LLC, except for (i) issuances of Common Shares upon the Representativesexercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters, (ii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Registration Statement and the Prospectus, (iii) issuances of Common Shares under the Company's Incentive Share Award Plan described in the Registration Statement and the Prospectus and (iv) issuances of Common Shares as partial or full payment for a period properties directly or indirectly acquired or to be acquired by the Company or its subsidiaries; PROVIDED that, the Company shall have conditioned such issuances of 180 days after Common Shares upon agreement of the date recipients to the restrictions of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesparagraph;
(mxvi) to use its best efforts to cause its officers, directors and affiliates not the Shares to (i) take, directly or indirectly prior to termination of be listed on the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the CompanyNYSE; and
(nxvii) that the provisions to use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyCode.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state where it is not now so qualified or required to file a consent;
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under T of the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the 13 qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law;
(f) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(g) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(ih) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(i) to furnish to the Representative, (ii) copies not less than two business days before filing with the Commission until the termination of the offering of the Shares, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hj) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ik) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jl) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file with the NASDAQ Nasdaq National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National MarketMarket and remain so listed for at least three years from the Closing Time or for such shorter period as may be approved by the Representative; provided, however, this covenant will be satisfied if the Company elects to list its common stock on the New York Stock Exchange; provided, further, that if the Company is to be acquired and such acquisition will cause the Company’s common stock to be delisted with the Commission, the approval of the Representative will not be needed;
(km) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(ln) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options or (C) the ability of the Company to conduct negotiations to acquire third party entities for shares of its Common Stock;
(mo) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(np) to cause each 5% or greater stockholder, officer (other than C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇) and director of the Company to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters; provided that, with respect to L▇▇▇▇ ▇▇▇▇▇▇▇, the Company shall use its reasonable best efforts to obtain such letter.
(q) that the provisions of the engagement letter agreement dated March 514, 1999, 2005 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. the Representative shall survive terminate upon the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein; provided that Section 2 and Section 10 of the letter agreement shall survive and remain in full force and effect; and provided further that the provisions of Section 4 shall survive with respect to any claims arising prior to the date of this Agreement; and
(r) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
Appears in 1 contract
Certain Covenants. (a) The Trust and Company covenants with the Company hereby covenant and agree with each Underwriter Agent as follows:
(ai) The Company will not at any time file or make any amendment to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as , the Underwriters may reasonably request Preliminary Prospectus or the Prospectus of which the Agent shall not have previously been advised and have previously been furnished a copy, or to which the Agent or counsel for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;Agent shall reasonably object.
(cii) The Company will notify the Agent, promptly after it shall receive notice thereof, of the time when the contemplated post-effective amendment to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective or when any supplement to the Prospectus has been filed.
(iii) The Company will prepare and when timely file with the Commission under Rule 424(b) of the 1933 Act Regulations, if required, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement, including any post-effective amendment thereto becomes effective under thereto, in reliance on Rule 430A of the Securities 1933 Act Regulations;Regulations or otherwise.
(div) to The Company will advise the Representatives immediatelyAgent, confirming such advice in writingpromptly after it has received notice thereof, of (i) the receipt of any comments fromof the SEC with respect to the Post-Effective Amendment, or of any request by, of the Commission SEC for amendments or supplements to further amendment of the Registration Statement or for supplement to the Prospectus or for any additional information with respect theretoinformation, or (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement Statement, or the use of the Prospectus or of the institution or threat of any proceedings for that purpose; the Company will provide the Agent with copies of all correspondence related thereto; and the Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of any the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(v) The Company will deliver or cause to be delivered to the Agent, without charge, from time to time during the period commencing on the date hereof and continuing until the earlier of (A) the termination or expiration of the Offering or (B) the termination of the employment of the Agent pursuant to Section 8 of this Agreement (the "Offering Period"), such number of copies of the Registration Statement, Preliminary Prospectus or Prospectus (as supplemented or amended) as the Agent may reasonably request. The Company consents to the use of the Preliminary Prospectus and Prospectus by the Agent in connection with the Offering and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith.
(vi) The Company will use its best efforts to comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the transactions contemplated in this Agreement and in the Prospectus. If, at any time during the Offering Period, or when a Preliminary Prospectus or Prospectus is required by the 1933 Act to be delivered in connection with offers or sales of the suspension Shares, any event shall occur or condition exist as a result of which it is necessary, in the qualification reasonable opinion of counsel for the Capital Securities Agent or counsel for offering or sale in any jurisdictionthe Company, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Prospectus in order that the Preliminary Prospectus or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would will not include an 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, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered, not misleadingor if it shall be necessary, and, during in the reasonable opinion of either such time, to prepare and promptly furnish to the Underwritercounsel, at any such time to amend the Trust's and Preliminary Prospectus or Prospectus, or amend or supplement the Company's expensePreliminary Prospectus or Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare such amendments amendment or supplements to such Prospectus supplement as may be necessary to reflect any correct such change untrue statement or omission or to make the Preliminary Prospectus or Prospectus comply with such requirements.
(vii) The Company will use its commercially reasonable efforts to qualify the Shares for offering and sale, or to exempt the Shares from registration, under the applicable securities laws of such states and other jurisdictions as the Agent may reasonably designate and to furnish maintain such qualifications or exemptions in effect for a period of not less than one year from the Effective Date; provided, however, that the Company shall not be obligated to the Underwriters file any general consent to service of process or to qualify as a copy foreign corporation in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives statements and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, reports as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act laws of each jurisdiction in which the Shares have been qualified or the Securities Act Regulations, exempted as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestabove provided.
(hviii) to apply During the net proceeds term of the sale of Offering, the Capital Securities Company will not issue any press releases or other communications directly or indirectly and the Debentures in accordance will hold no press conferences with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) respect to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions financial condition, results of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainoperations, at its expensebusiness properties, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell assets or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security liabilities of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation offering of the price Shares, without the prior written notice to the Agent, except as otherwise required by law.
(b) The Agent covenants with the Company that the Agent shall remain a registered selling agent in all such jurisdictions in which the Company is relying on such registration for the sale of the Capital Securities Shares until the Offering is consummated or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyterminated.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required by, and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under under, the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement (or on such other day as the parties may mutually agree) and to furnish promptly (and with respect to the initial delivery of such Prospectus, ) not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement (or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in substance (except with respect to pictures and graphics, which shall be summarized in the ▇▇▇▇▇ version) to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writingwriting or (iii) of the receipt by the Company or any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other publicly available information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or Company or the discovery of any facts or circumstances known to the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, Company would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law;
(g) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(h) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and obtain the consent of the Representative to the filing (which consent shall not be unreasonably withheld, without charge, conditioned or delayed);
(i) to furnish promptly to each Representative a signed copies copy (i.e., the ▇▇▇▇▇ version with facsimile signatures) of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
(j) to furnish to each Representative, not less than one business day after filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iie) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.;
(hk) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(il) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jm) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file with the NASDAQ Nasdaq National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in quoted on the over-the-counter market and quotations for which are reported by the NASDAQ Nasdaq National Market;
(kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lo) for a period of 90 days from the date of the final Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementwhich shall not be unreasonably withheld, conditioned or delayed, not to to, directly or indirectly, (i) offer, issuepledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option for the sale of, or otherwise dispose of or transfer (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or file any registration statement under the Securities Act with respect to any of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company pursuant to any employee benefit plan existing on the date hereof and referred to in the Prospectus or (C) any acquisition of all or substantially all of the stock or assets of any other entity;
(mp) except for stock repurchases under its employee benefit plans, not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(q) to cause each executive officer and director of the Company to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), except for shares pledged as of the date hereof, any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the final Prospectus, without the prior written consent of the Representative on behalf of the Underwriters, which consent shall not be unreasonably withheld, conditioned or delayed;
(r) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $10 million which shall apply to the offering contemplated herein;
(s) if at any time during the 30-day period after the date of the final Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and, upon the reasonable request of the Representative, unless deemed inappropriate in the Company's reasonable judgment in consultation with outside legal counsel, disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and
(nt) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (McSi Inc)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Notes for offering and sale under the securities or blue sky laws of such states as the Representatives Underwriter may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesNotes; PROVIDED that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Notes); and to promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare make available to the Prospectus Underwriter in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act; in case the Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Notes, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyUnderwriter promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing;
(d) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, and to promptly notify the Underwriter of such filing;
(e) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Notes may commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(f) to furnish to the Underwriters Underwriter, for a period of five three years from the date of this Agreement Agreement, (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters Underwriter may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; PROVIDED, HOWEVER, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(fg) to advise the Underwriters Underwriter promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Notes is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriter promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters Underwriter a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gh) to make generally available to its security holders, and to deliver to the Underwriter, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(i) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ij) signed copies to furnish to the Underwriter one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein);
(k) to furnish to the Underwriter as early as practicable prior to the time of purchase but not later than two business days prior thereto, (ii) copies a copy of any document incorporated by reference in the Prospectus (including exhibits thereto) latest available unaudited interim consolidated financial statements, if any, of the Company and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany's independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 6(d) hereof;
(hl) to apply the net proceeds of from the sale of the Capital Securities and Notes in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus;
(m) to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, any Prospectus Supplement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriter and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableissuance, but in any event not later than the end sale and delivery of the fiscal quarter first occurring after Notes by the first anniversary Company, (iii) the word processing and/or printing of this Agreement, any Agreement among Underwriters, any dealer agreements and the Indenture and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter and to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriter) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriter and to dealers and (v) the filing for review of the public offering of the Notes by the NASD Regulation, Inc. (including the legal fees and filing fees and other disbursements of counsel to the Underwriter with respect thereto), (vi) any listing of the Notes on any securities exchange and any registration thereof under the Exchange Act, (vii) the fees and expenses of the Trustee and its counsel, (viii) the approval of the Notes by DTC for "book entry" transfer, (ix) the rating of the Notes by rating agencies and (x) the performance of the Company's other obligations under this Agreement;
(n) to furnish to the Underwriter, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (g) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;Exchange Act; and
(jo) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintainnot, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the RepresentativesUnderwriter, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any additional securities transaction which 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 Trust Company or any person in privity with the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security 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 which may cause establish or result in, increase a put equivalent position or which might in liquidate or decrease a call equivalent position within the future reasonably be expected to cause or result in, the stabilization or manipulation meaning of Section 16 of the price of the Capital Securities Exchange Act, any debt securities issued or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between guaranteed by the Company (other than the Notes) or publicly announce an intention to effect any such transaction, during the period from the date hereof through and Friedmanincluding May 11, Billings2003; provided that this will not prevent the Company from making borrowings under the Credit Agreement, ▇▇▇▇▇▇ & Co.dated as of June 27, Inc. shall survive the execution 2002, by and delivery of this Agreement and the consummation of the transactions contemplated hereby.among the
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective, the Company will use its reasonable best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(eh) to furnish or make available to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, Common Stock and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that, in the judgment of the Company or the Representatives, is required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and obtain the consent of the Representatives to the filing, without charge, which consent will not be unreasonably withheld;
(il) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market Nasdaq and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketlisted on Nasdaq;
(kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lq) to refrain during a period of 90 days from the date of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (other than a registration statement on Form S-8), or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant outstanding on the date hereof or (C) the grant of any shares of restricted stock or options to purchase Common Stock, or the issuance of shares of Common Stock upon exercise of options, pursuant to any stock plan described in the Prospectus; provided, that the vesting period for any restricted stock or options issued pursuant to any such stock plan must be at least as long as the remainder of the Lock-Up Period and that the Company agrees not to waive any such vesting period;
(mr) not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company;
(s) to cause each officer and director of the Company and each Selling Stockholder who will continue to be a stockholder of the Company following the offering of Shares contemplated hereunder, to furnish to the Representatives, prior to the Closing Time, lock-up letters, substantially in the form of Exhibit B hereto; and
(nt) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5Registration Statement. Each Selling Stockholder, 1999severally and not jointly, between hereby agrees with each Underwriter:
(a) to deliver to the Representatives prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person, within the meaning of the Code) or Form W-9 (if the Selling Stockholder is a United States person, within the meaning of the Code);
(b) if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus and the Disclosure Package has been completed, as determined by the Representatives, such Selling Stockholder has knowledge or becomes aware of the occurrence of any event as a result of which the Registration Statement, as then amended, would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or the Disclosure Package, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, such Selling Stockholder will promptly notify the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery Representatives;
(c) to deliver to the Company or the Underwriters such documentation as the Company or the Underwriters or any of their respective counsel may reasonably request in order to effectuate any of the provisions of this Agreement Agreement; and
(d) to not prepare or have prepared on its behalf or use or refer to any Free Writing Prospectus and to not distribute any written materials in connection with the consummation offer or sale of the transactions contemplated herebyShares. Each of the Underwriters covenants and agrees, severally and not jointly, as follows:
(a) it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than (i) a Free Writing Prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included in the Disclosure Package, or (ii) any Free Writing Prospectus approved by the Company in advance in writing;
(b) it will not distribute any Free Writing Prospectus referred to in clause (a)(i) in a manner reasonably designed to lead to its broad, unrestricted dissemination; and
(c) it will, pursuant to reasonable procedures developed in good faith, retain copies of each Free Writing Prospectus used or referred to by it, to the extent required by Rule 433 under the Securities Act.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or the day following the date on which the price for the Shares is determined, whichever is later, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. 5:00 p.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T, and the Company agrees to notify the Underwriters promptly of any such material errors or omissions of which it becomes aware and to promptly correct the same;
(c) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(e) to furnish to the Underwriters Underwriters, at their request, for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish promptly upon the Representatives and counsel for request of the Underwriters, without charge, (i) Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including upon request all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request;
h) to furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act;
(hi) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its reasonable best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) without after the prior written consent expiration of the RepresentativesUnderwriters' overallotment option as described in section 1(b) hereof, to prepare and distribute bound volumes of transaction documents for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesRepresentative and its legal counsel;
(mn) to not itself and to use its reasonable best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(no) that if at any time during the provisions of period after the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery date of this Agreement and until the consummation distribution of the transactions contemplated herebyShares by the Underwriters has been completed, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Common Stock has been materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative and not inconsistent with the Company's obligations under New York Stock Exchange rules and applicable law, responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows:
(a) The Purchaser agrees to furnish such information as may be required and otherwise to cooperate vote all shares of Fund Common Stock beneficially owned by the Purchaser in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution favor of the Capital Securities;Proposal at the Special Meeting.
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect The Purchaser agrees that prior to the initial delivery of such Prospectus, Closing it will not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (directly or of the Prospectus as amended indirectly seek or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of propose (i) the receipt of any comments fromto initiate, or join any request byperson in initiating, any action to influence or control the Commission for amendments Fund's management or supplements to policies (provided that this covenant shall not restrict the Registration Statement or Prospectus or for additional information with respect theretoPurchaser from voting its shares of Fund Common Stock as it sees fit, except as otherwise provided in Sections 7(a) and 7(b)(ii)), or (ii) to take any action or support any action by any other person that is in opposition to the issuance by the Commission of any stop order suspending the effectiveness Proposal or to shareholder approval of the Registration Statement or of Proposal.
(c) The Purchaser agrees that it will not take any order preventing or suspending action intentionally to depress the use of any Preliminary Prospectus or the Prospectus, or trading price of the suspension Fund Common Stock.
(d) The Sellers and the Purchaser agree to use all commercially reasonable efforts to obtain as promptly as possible all regulatory approvals required for them to consummate the Transaction as provided herein, including, without limitation, approvals under the HSR Act. The Sellers will not intentionally take or omit to take any action to delay the Aberdeen Closing beyond December 2000. The Sellers will give the Purchaser reasonable advance notice, to the extent practicable, of the qualification date of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;Aberdeen Closing.
(e) The Sellers agree to furnish to notify the Underwriters for a period of five years from the date of this Agreement Purchaser promptly if (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockthey learn that the Aberdeen Closing will occur after December 2000, (ii) as soon as practicable after the filing thereofAberdeen Agreement is terminated, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as they learn of any event that would result in a failure of the Underwriters may reasonably request regarding conditions set forth in Section 6 to be satisfied or that would constitute a breach of their representations, warranties or covenants hereunder. The Purchaser agrees to notify the TrustSellers promptly if it learns of any event that would result in a failure of the conditions set forth in Section 6 to be satisfied or that would constitute a breach of its representations, the Company and/or the Subsidiaries;warranties or covenants hereunder.
(f) to advise The Purchaser acknowledges that the Underwriters promptly Sellers are affiliates of the happening of any event known to the Trust and/or the Company Fund, within the time during which a Prospectus relating to meaning of Rule 405 under the Capital Securities is required to be delivered Act. The Purchaser agrees that it will not sell the Shares otherwise than in compliance with Rule 144 under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement1933, as initially filed with amended (the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein"Securities Act"), (ii) copies of any document incorporated by reference or otherwise in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by transaction that does not require registration under the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestAct.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant covenants and agree agrees with each Underwriter as followsthe Underwriter:
(a) to furnish prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Underwriter, and file such information as may be required and otherwise Rule 462(b) Registration Statement with the Commission on or prior to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) date hereof; to prepare the Prospectus in a form approved by the Underwriters Underwriter, containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and 430C and to file such Prospectus with the Commission pursuant to Rule 424(b) of the Rules and Regulations not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of or, if applicable, such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters earlier time as many copies may be required by Rule 430A of the Prospectus (or Rules and Regulations; to notify the Underwriter promptly of the Prospectus as amended Company’s intention to file or supplemented if the Trust and the Company shall have made prepare any amendments supplement or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or to the Prospectus in connection with this Offering and to provide a draft of any such amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus to the Underwriter for review within an amount of time that is reasonably practical under the circumstances and prior to filing, and to file no such amendment or supplement to which the Underwriter shall have reasonably objected in writing; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed in connection with the Offering or becomes effective or any supplement to the General Disclosure Package or the Prospectus or for additional information any amended Prospectus has been filed and to furnish the Underwriter with respect theretocopies thereof; to file within the time periods prescribed by the Exchange Act, including any extension thereof, all material required to be filed by the Company with the Commission pursuant to Rule 433(d) or (ii) 163(b)(2), as the case may be; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Issuer Free Writing Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes any request by the Commission for the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information; and, if in the Commission event of the issuance of any stop order or of any other government agency order preventing or authority should issue suspending the use of any Issuer Free Writing Prospectus or the Prospectus or suspending any such orderqualification, and promptly to make every use its reasonable effort best efforts to obtain the lifting or removal withdrawal of such order order;
(b) that it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as soon as possibledefined in Rule 405 of the Rules and Regulations unless the prior written consent of the Underwriter has been received (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Underwriter shall be deemed to advise have been given in respect of the Representatives promptly Free Writing Prospectuses included in Schedule II hereto and any electronic road show, if any. The Company shall furnish to the Underwriter, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement thereto to which the Representatives shall reasonably object in writing;
(e) be prepared by or on behalf of, used by, or referred to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company. The Company or represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and that it has and will comply with the Trust requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, the NASD or any securities exchange legending and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesrecord keeping;
(fc) to advise the Underwriters promptly of the happening of if at any event known to the Trust and/or the Company within the time during which when a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichAct, in any event occurs or condition exists as a result of which the judgment of the Trust and the CompanyProspectus, as then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an 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 under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the Commissionstatements therein not misleading, and of all amendments or supplements thereto (including all exhibits filed therewith if for any other reason it is necessary at any time to amend or incorporated by reference therein), (ii) copies of any document incorporated by reference in supplement the Registration Statement or the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by to comply with the Securities Act or the Securities Act RegulationsExchange Act, as many copies of any Preliminary Prospectus the Company will promptly notify the Underwriter, and upon the Underwriter’s request, the Company will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus and any amendments thereof and supplements thereto as that corrects such statement or omission or effects such compliance. The Company consents to the Representatives may reasonably request.
(h) to apply the net proceeds use of the sale of Prospectus or any amendment or supplement thereto by the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the ProspectusUnderwriter;
(id) to the extent not available on the Commission’s ▇▇▇▇▇ system, to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the each Registration Statement (or 90 days if such 12-month period coincides with as defined in Rule 158(c) of the Company's fiscal yearRules and Regulations), an earnings statement of the Company and its consolidated Subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the Rules and Regulations (in formincluding, at the option of the Company, complying Rule 158);
(e) to take promptly from time to time such actions as the Underwriter may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Underwriter may designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit the offer and sale of Securities in such jurisdictions; provided that the Company and its Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(f) to supply the Underwriter with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the provisions of Rule 158 registration of the Securities under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of or the Registration StatementStatement or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein;
(jg) prior to use its best efforts the Time of Purchase, not to effect issue any press release or other communication directly or indirectly or hold any press conference (other than the Company’s customary quarterly press release and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(lconference call) without the prior written consent of the RepresentativesUnderwriter (which consent shall not be unreasonably withheld, delayed or conditioned);
(h) until the Underwriter shall have notified the Company of the completion of the Offering, that the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, and except to the extent expressly set forth in the General Disclosure Package as part of the offering contemplated hereby, bid for or purchase, for any account in which it or any of its affiliated purchasers has a period beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of 180 days after creating actual, or apparent, active trading in or of raising the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities price of the Trust or Securities;
(i) to apply the net proceeds from the sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of Proceeds”;
(j) to reserve and keep available at all times, free of preemptive rights, Series A Convertible Preferred Stock and Common Stock for the purpose of enabling the Company substantially similar to satisfy all obligations to issue the Capital Preferred Shares, the Conversion Shares, the CSW Shares and the PSW Shares upon conversion of the applicable Securities or any securities convertible into or exchangeable issued on the Closing Date, in each case assuming that the exercise of the Common Stock Warrants and the conversion of the Preferred Shares occurs based on the trading price of the Common Stock reported on the Principal Market at the Time of Purchase;
(k) to use its reasonable best efforts to list for or that represent quotation the right Conversion Shares, the CSW Shares and the PSW Shares on the Principal Market;
(l) to receive any such similar securitiescooperate with the Underwriter and use its commercially reasonable efforts to permit the offered Series A Convertible Preferred Stock and Common Stock Warrants to be eligible for clearance and settlement through the facilities of DTC;
(m) to use its best efforts to cause its officersuntil the Underwriter shall have notified the Company of the completion of the offering of the Securities, directors and affiliates the Company will not to (i) take, take directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Companydesigned, or which may cause or result in, or which that might in the future reasonably be expected to cause or result in, the or that will constitute, stabilization or manipulation of the price of the Capital Securities or any security of the Company, Company to facilitate the sale or resale of any of the Capital Securities;
(n) to 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 Time of Purchase, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases and to satisfy all conditions precedent to the delivery of the Capital Securities to be delivered at such time;
(o) from the date hereof until 90 days after the date of the Prospectus, to enforce all Lock-up Agreements that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities or any of the other actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition, the Company will announce the Underwriter’s intention to release any director or “officer” (within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the restrictions imposed by any Lock-up Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to the Underwriter or, if consented to by the Underwriter, in a registration statement that is publicly filed in connection with a secondary offering of the Company’s shares promptly following the Company’s receipt of any notification from the Underwriter in which such intention is indicated, but in any case not later than the close of the third business day prior to the date on which such release or waiver is to become effective; provided, however, that nothing shall prevent the Underwriter, from announcing the same through a major news service, irrespective of whether the Company has made the required announcement; and provided, further, that no such announcement shall be made of any release or waiver granted solely to permit a transfer of securities that is not for consideration and where the transferee has agreed in writing to be bound by the terms of a Lock-up Agreement; and
(np) that for so long as the provisions Company is required to pay any Fees (as defined below) to the Underwriter, to immediately notify the Underwriter on each instance the Company receives proceeds from the sale of the engagement letter agreement dated March 5Securities. The Underwriter, 1999may, between in its sole discretion, waive in writing the performance by the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation any one or more of the transactions contemplated herebyforegoing covenants or extend the time for their performance.
Appears in 1 contract
Certain Covenants. A. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under under, or establishing an exemption from such qualification under, the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications or exemption in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of, or subject itself to taxation as doing business in, any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representative and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), under the Securities Act on or before the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative, which consent shall not be unreasonably withheld or delayed, prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writingwriting prior to such filing (unless required to do so by law);
(eh) to furnish to the Underwriters for a period of five two (2) years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trustexchange, provided, however, that the Company and/or the Subsidiarieswill not be required to furnish reports or other communications or information that is available on ▇▇▇▇▇ or other publicly available electronic means;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at Representative copies of the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and to obtain the consent of the Representative which consent shall not be unreasonably withheld or delayed;
(il) signed to furnish promptly to the Representative such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives Representative may reasonably request.;
(hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Initial Shares in accordance with the its statements under the caption "Use of Proceeds" in the ProspectusProspectus and the Disclosure Package;
(in) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jo) to use its reasonable best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market Nasdaq, provided that the Company has a sufficient number of stockholders to be eligible to list the Shares on Nasdaq, and if applicable, to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq and to use its reasonable best efforts to maintain the quotation of the Shares on the Nasdaq, and to comply in all material respects with the applicable corporate governance requirements set forth in the NASD's Nasdaq Marketplace Rules standards in effect from time to time;
(kp) the Company and any of the officers and directors of the Company in their capacities as such, are, and at the Closing Time and any Option Closing Time will be in compliance in all material respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated thereunder that are effective and applicable to the Company on such date;
(q) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the foregoing restrictions do not apply to (a) the issuance and sale of the Initial Shares by the Company to the Underwriters in connection with the public offering contemplated by this Agreement, (b) the filing of amendments or supplements to the Company's registration statement (Reg. No. 333-133983) (the "Shelf Registration Statement") relating to the registration of shares of Common Stock pursuant to the Registration Rights Agreement dated April 11, 2006, (c) the filing of a Rule 462(b) Registration Statement, if any, and a registration statement on Form S-8, (d) the issuance or sale of shares of Common Stock or the execution of any agreement to issue shares of Common Stock in connection with the acquisition of stock or assets of another business, by merger or otherwise, provided that the recipients of such shares of Common Stock agree to the same lock-up provisions and the remaining period to which the Company is subject, (e) the issuance of any securities pursuant to the Company's stock incentive plan, and (f) the issuance of any shares of Common Stock upon the exercise of any options issued pursuant to the Company's stock incentive plan as described in the Registration Statement;
(ms) not to, and to use its best commercially reasonable efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company;
(t) to cause (i) each executive officer and director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B-1 hereto and (ii) each of the DLJ Funds and CCBM to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B-2 hereto;
(u) that the Company shall have customary directors and officers liability insurance;
(v) if, at any time during the 30-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially adversely affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, consult with the Representative, subject to applicable law, concerning such rumor, publication or event;
(w) that the Company will comply in all material respects with all of the provisions of any undertakings in the Registration Statement; and
(nx) that the provisions Company (i) will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including without limitation, the rules and regulations of the engagement letter agreement dated March 5NASD, 1999in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, between similar taxes or duties or other taxes, if any, incurred by the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive Underwriters in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyDirected Share Program.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Gas Resources, Inc.)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(de) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of 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) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing;
(ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(hk) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act, the Exchange Act Regulations and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act;
(l) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus;
(im) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jn) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the The NASDAQ National Market and to file with the The NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketconnection therewith;
(ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lp) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus;
(mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nr) to cause each 1% or greater stockholder, officer and director of the Company to furnish to the Representatives, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives on behalf of the Underwriters;
(s) [Intentionally omitted];
(t) [Intentionally omitted];
(u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(v) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between Registration Statement;
(w) [Intentionally omitted];
(x) that the Company (i) will comply with all applicable securities and Friedmanother applicable laws, Billingsrules and regulations, ▇▇▇▇▇▇ & Co.including without limitation, Inc. shall survive the execution rules and delivery of this Agreement and the consummation regulations of the transactions contemplated herebyNASD, in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
Appears in 1 contract
Certain Covenants. (a) The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(ai) to furnish such information as may be required and otherwise to reasonably cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(bii) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably practicable and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(iii) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T;
(civ) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(dv) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(vi) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(vii) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eviii) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD NASD, the Nasdaq National Market or any securities exchange and (iii) subject to compliance with applicable law, such other information as the Underwriters may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, that the Company and/or shall not be required to furnish reports or other communications supplied to holders of shares of Common Stock to the Subsidiariesextent such reports or communications are available on E▇▇▇▇ or otherwise made publicly available;
(fix) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or, in lieu thereof, the notice referred to in Rule 172(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not when it (or, in lieu thereof, the notice referred to in Rule 172(a) under the Securities Act Regulations) is so delivered, include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations;
(x) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gxi) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent (iwhich will not be unreasonably withheld or delayed) of the Representative to the filing;
(xii) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request.;
(hxiii) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(ixiv) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jxv) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ Nasdaq National Market and to file with the NASDAQ Nasdaq National Market all documents and notices required by the NASDAQ Nasdaq National Market of companies that have securities that are traded in on the over-the-counter market Nasdaq National Market and quotations for which are reported by the NASDAQ Nasdaq National Market;
(kxvi) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lxvii) to refrain from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus or (C) (I) any grants of options to purchase shares of Common Stock or (II) issuances of Common Stock pursuant to the Company’s employee benefit plans to the extent such plans are in effect as of the date of the Prospectus;
(mxviii) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Shares or
Appears in 1 contract
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) by not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediately, confirming such advice in writing, promptly of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, Preliminary Prospectus or Prospectus Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening in writing of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters at the request of any of the Representatives, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company.
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements Supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish the Representatives and counsel for the Underwriterspromptly to each Representative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.;
(h) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Prospectus;
(ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jk) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketthereon;
(kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lm) to use its reasonable efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code;
(n) to conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act;
(o) to refrain, during a period of 30 days from the date of this Agreement, without the prior written consent of the RepresentativesFriedman, for a period of 180 days after the date of this AgreementBillings, not ▇▇▇▇▇▇ & Co., Inc. (“FBR”), from (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or other instrument granted under the Company’s 1997 Stock Option and Awards Plan, as amended (the “Option Plan”), (C) any shares of Common Stock issuable by the Company upon the conversion of securities or the exercise of warrants outstanding on the date hereof and referred to in the Prospectus, (D) the grant of any option or other instrument to purchase or acquire shares of Common Stock of the Company under the Option Plan, and (E) any shares of Common Stock issued by the Company under the Company’s Dividend Reinvestment and Stock Purchase Plan or its 2002 Dividend Reinvestment and Stock Purchase Plan;
(mp) to not itself, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and.
(nq) that If, at any time during the provisions 30-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the engagement letter agreement dated March 5Representatives the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, 1999, between publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and Friedmandisseminate a press release or other public statement, Billingsresponding to or commenting on such rumor, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebypublication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation, to subject itself to taxation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective under the Securities Act or the Securities Act Regulations;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations not later than 10:00 a.m. (New York City time), ) on the day following the execution and delivery of this Agreement or on such other day as the parties hereto may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriters) copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TT and Rule 424;
(cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement that becomes known to the Company, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eh) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries;
(fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act Regulations whichif, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) such event or development would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of such event or development any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing;
(il) to furnish promptly to each Underwriter a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith therewith) and such number of conformed copies of the foregoing as the Underwriters may reasonably request;
(m) during the period referred to in Section 4(h) hereof, (i) to file all documents required to be filed with the Commission pursuant to Section 13 or incorporated 15(d) of the Exchange Act in the manner and within the time periods required by reference therein), the Exchange Act and the Exchange Act Regulations and (ii) copies to furnish to the Representative a copy of any document incorporated by reference in (other than any request for confidential treatment) filed with the Prospectus (including exhibits thereto) and (iii) so long as delivery Commission the full text of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.which is not filed via ▇▇▇▇▇;
(hn) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package;
(io) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) ), covering a period of 12 months beginning after the effective date of the Registration Statement;
(jp) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that have securities that are traded in on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE;
(kq) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lr) to refrain, from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option, right or warrant to purchase or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities security convertible into into, exercisable for or exchangeable for Common Stock or filing any registration statement under the Securities Act with respect to any of the foregoing (other than the registration statement on Form S-8 described in the Prospectus and the Disclosure Package), (ii) entering into any swap or any other arrangement or transaction that represent transfers to another, in whole or in part, directly or indirectly, any of the right to receive economic consequences of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) filing or causing to be filed a registration statement under the Securities Act, including any amendment thereto, with respect to the registration of any shares of Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock or any other security of the Company (other than the registration statement on Form S-8 described in the Prospectus and the Disclosure Package) or (iv) publicly disclosing the intention to do any of the foregoing. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any grant of options to purchase Common Stock, or any issuance of shares of restricted Common Stock or other equity-based awards, pursuant to the Company’s 2010 Stock Incentive Plan described in the Prospectus, and the 180-day restricted period described in the preceding sentence will be extended if: (1) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period, in which case the restrictions described above will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event, unless such extension is waived in writing by the Representative;
(ms) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, Company to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and;
(nt) to cause each stockholder, executive officer and director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto;
(u) that the provisions of Sections 7 and 9-19 (inclusive) of the engagement letter agreement dated March 5October 21, 1999, 2009 between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein;
(v) if, at any time during the 90-day period after the date of the Prospectus, any publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such publication or event;
(w) that the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(x) that the Company (i) will comply with all applicable securities and other applicable laws, rules and regulations, including FINRA rules and regulations, in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program and (ii) will pay all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program;
(y) that promptly following the closing of the Company’s acquisition of all of the outstanding capital stock of Argonaut-Southwest Insurance Company, the Company will deliver to the Representative the opinion of counsel to Argonaut Insurance Company (“Seller”), addressing the opinions set forth in Schedule 7.1 to the Stock Purchase Agreement, dated as of December 28, 2009 (the “Stock Purchase Agreement”), between Seller and Patriot National Insurance Group, Inc.; and
(z) that the Company will not agree to amend, or otherwise waive any right the Company has to receive the opinions set forth in, Schedule 7.1 of the Stock Purchase Agreement without the prior written consent of the Representative, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Underwriting Agreement (Patriot Risk Management, Inc.)
Certain Covenants. The Trust Company and the Company Operating Partnership hereby covenant and agree with each Underwriter as followsUnderwriter:
(a) to furnish such information as may be required and otherwise to cooperate with the Underwriters in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time)) to the Underwriters on the second day following the execution and delivery of this Agreement) to Agreement or on such other day as the Underwriters as many parties may mutually agree copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives (which consent may not be unreasonably withheld) prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified on Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediatelyorally immediately (and, confirming if requested by the Representatives, promptly confirm such advice in writing), of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Exchange Act Registration Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblereasonably practicable, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Exchange Act Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;
(eh) to furnish furnish, upon request, to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, Common Stock and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange;
(fi) (i) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) is required to be delivered under the Securities Act Regulations in connection with sales by an Underwriter or dealer which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package, as amended or supplemented, will comply with the Securities Act and the Securities Act Regulations;
(j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and obtain the consent of the Representatives to the filing (which consent may not be unreasonably withheld or delayed);
(l) upon request, without charge, (i) to furnish promptly to each Representative two complete manually-signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference the foregoing as the Representatives may reasonably request;
(m) to furnish to each Representative, not less than one business day before filing with the Commission subsequent to the effective date of the Registration Statement and during the period in the Prospectus (including exhibits thereto) and (iii) so long as delivery of which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or the Securities Act RegulationsRegulations (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule), as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations;
(hn) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package and to file such reports with the Commission with respect to the sale of Shares and the application of the proceeds therefrom as may be required by Rule 463 of the Securities Act Regulations;
(io) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement;
(jp) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Nasdaq Global Market and to file with the NASDAQ National Nasdaq Global Market all documents and notices required by the NASDAQ National Nasdaq Global Market of companies that have securities that are traded in quoted on the over-the-counter market and quotations for which are reported by the NASDAQ National Nasdaq Global Market;
(kq) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares;
(lr) to refrain during a period of 360 days from the date of the Prospectus (the “Lock-up Period”), without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, establishing an open “put equivalent” position within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose disposing of or transferring, (or entering into any additional transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any other securities of the Trust or the Company that are substantially similar to the Capital Securities Common Stock, or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (other than a registration statement on Form S-8 registering shares of Common Stock issuable under the Company’s 2007 Equity Incentive Plan), or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) the shares of Common Stock to be issued in connection with the Formation Transactions, or (C) any shares of Common Stock, or other equity securities, including LTIP Units, issued by the Company under the Company’s 2007 Equity Incentive Plan that will not vest or become exercisable, as applicable, during the Lock-up Period. If (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 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 each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless the Representatives waive, in writing, such extension;
(ms) not to, and to use its best efforts to cause its officers, directors directors, partners and affiliates not to (i) taketo, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) except for the purchase and sale of the shares disclosed in both the Prospectus and the Disclosure Package as being sold to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or an entity he controls, sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company;
(t) to cause each officer and director of the Company and such entities as set forth on Schedule VI hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters substantially in the form of Exhibit A hereto;
(u) that the Company shall obtain Directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion; and
(nv) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Meruelo Maddux Properties, Inc.)
Certain Covenants. (a) The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(ai) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery except service of this Agreement and to furnish promptly (and process with respect to the initial delivery offering and sale of the Shares); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threat of any proceeding for such Prospectus, not later than 10:00 a.m. purpose;
(ii) to make available to the Underwriters in New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus and any the Company will prepare promptly upon request, but at its expense, such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statements and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(ciii) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement Statements or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes Statements and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statements, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement Statements or Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing;
(eiv) to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, and to promptly notify you of such filing;
(v) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the registration statement or such post-effective amendment has become effective;
(vi) to furnish to you and, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement (i) as soon as availablecopies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other communications supplied to holders similar form as may be designated by the Commission, (iii) copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commissionis listed, the NASD or any securities exchange and (iiiiv) such other information as the Underwriters you may reasonably request regarding the TrustCompany or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; provided, however, that in no case shall the Company and/or the Subsidiariesbe required to furnish materials pursuant to this paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(fvii) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gviii) to make generally available to its security holders, and to deliver to you, as soon as reasonably practicable, but not later than 16 months after the date of this Agreement, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of 12 months beginning after the later of (i) the effective date of the Registration Statements (as defined in Rule 158(c) of the Act) covering the Firm Shares, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement or (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement;
(ix) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders’ equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants;
(ix) signed to furnish to you seven conformed copies of each of the Registration StatementStatements, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter or dealer copy to each of the other Underwriters;
(xi) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be required be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Securities Act or the Securities Act RegulationsCompany’s independent certified public accountants, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.stated in their letter to be furnished pursuant to Section 7(f) hereof;
(hxii) to apply the net proceeds of from the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner set forth under the caption "“Use of Proceeds" proceeds” in the Prospectus;
(ixiii) to make generally available furnish to its security holders and you, before filing with the Commission subsequent to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement Statements and during the period referred to in paragraph (vii) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act Exchange Act;
(in formxiv) not to (i) sell, at offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the option meaning of Section 16 of the CompanyExchange Act with respect to, complying with the provisions of Rule 158 any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the Securities Company that are substantially similar to Common Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii), or (iv) file a registration statement under the Act Regulations) covering relating to the offer and sale of any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the Company that are substantially similar to Common Shares for a period of 12 months beginning sixty (60) days after the effective date of hereof (the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over“Lock-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(lup Period”) without the prior written consent of UBS Securities LLC, except for (i) the Representativesregistration of the Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Shares upon the exercise of outstanding options or warrants as disclosed in the Registration Statements and the Prospectus to persons who have entered into Lock-Up Agreements with the Underwriters, (iii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to stock option plans, if any, described in the Registration Statements and the Prospectus, (iv) issuances of Common Shares under the Company’s Incentive Share Award Plan described in the Registration Statements and the Prospectus and (v) issuances of Common Shares as partial or full payment for properties directly or indirectly acquired or to be acquired by the Company or its subsidiaries; provided that, the Company shall have conditioned such issuances of Common Shares upon agreement of the recipients to the restrictions of this paragraph; provided, however, that if (x) during the period that begins on the date that is 15 calendar days plus 3 business days before the last day of the Lock-up Period and ends on the last day of the Lock-up Period, the Company issues a earnings release or material news or a material event relating to the Company occurs, 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 180 the Lock-up Period, the restrictions set forth in this Section 5(a)(xiv) shall continue to apply until the expiration of the date that is 15 calendar days plus 3 business days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities on which the issuance of the Trust earnings release or the Company substantially similar to the Capital Securities material news or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesmaterial event occurs;
(mxv) to use its best efforts to cause the Shares to be listed on the NYSE;
(xvi) to use its officersbest efforts to continue to qualify as a REIT under Sections 856 through 860 of the Code; and
(xvii) to maintain a transfer agent and, directors and affiliates if necessary under the jurisdiction of formation of the Company, a registrar for the Common Stock.
(b) The Selling Stockholder hereby agrees:
(i) to advise the Underwriters promptly of the happening of any event within the time during which a prospectus relating to the Shares is required to be delivered under the Act that is known to the Selling Stockholder, which, to the knowledge of the Selling Stockholder after consultation with counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; and
(ii) not to (i) takesell, offer to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the Company that are substantially similar to Common Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii), or (iv) or file a registration statement under the Act relating to the offer and sale of any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or options, warrants or other rights to purchase Common Shares or any other shares of the Company that are substantially similar to Common Shares for the Lock-up Period without the prior written consent of UBS Securities LLC, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement; provided, however, that if (x) during the period that begins on the date that is 15 calendar days plus 3 business days before the last day of the Lock-up Period and ends on the last day of the Lock-up Period, the Company issues a earnings release or material news or a material event relating to the Company occurs, or (y) prior to termination the expiration of the underwriting syndicate contemplated by 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 set forth in this Section 5(b)(ii) shall continue to apply until the expiration of the date that is 15 calendar days plus 3 business days after the date on which the issuance of the earnings release or the material news or material event occurs.
(c) The Company and the Selling Stockholder agree jointly and severally to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statements, the Basic Prospectuses, each Prepricing Prospectus, each Prospectus Supplement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) 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 the Underwriters, (iii) the word processing and/or printing of this Agreement, any action designed Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to stabilize or manipulate the price Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Capital Securities Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any security filing for review of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation public offering of the price Shares by NASD Regulation, Inc. (including the legal fees and filing fees and other disbursements of counsel to the Underwriters with respect thereto), (vi) any listing of the Capital Securities Shares on any securities exchange and any registration thereof under the Exchange Act, (vii) the fees and disbursements of any transfer agent or any security registrar for the Shares, (viii) the costs and expenses of the CompanyCompany and/or the Selling Stockholder relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, to facilitate including, without limitation, expenses associated with the sale or resale production of road show slides and graphics, fees and expenses of any of consultants engaged in connection with the Capital Securitiesroad show presentations, (ii) selltravel, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as followsagrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to service of process under the laws of any such state, (other than those arising out of the offering and sale of the Shares); and to promptly advise you of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to prepare make available to the Prospectus Underwriters in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time for so long as in the reasonable opinion of counsel for the Underwriters a form approved prospectus is required by the Act to be delivered in connection with sales by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)or any dealer, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such ProspectusUnderwriters, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case in the reasonable opinion of Counsel for the Underwriters any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act Regulationsin connection with the sale of the Shares, which Prospectus the Company will prepare promptly upon request and any at its cost such amendment or amendments or supplements thereto furnished to the Underwriters will Registration Statement and such prospectuses as may be identical necessary to permit compliance with the version created to be transmitted to requirements of Section 10(a)(3) of the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-TAct;
(c) to advise the Representatives you promptly and (if requested by the Representativesyou) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rules);
(d) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderenter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives you shall reasonably object in writingwriting within a reasonable period of time after notice from the Company;
(e) subject to Section 4(o) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the shares,
(f) if necessary or appropriate, to file in a timely fashion a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current any reports or other communications supplied which the Company shall send to holders its stockholders or shall from time to time publish or publicly disseminate, except for such materials as are filed and are publicly accessible via ▇▇▇▇▇ copies of shares of documents or reports filed with any national securities exchange on which any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies securities of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange is listed and are not available on ▇▇▇▇▇ and (iii) such other information as the Underwriters you may reasonably request regarding the TrustCompany as soon as such communications, the Company and/or the Subsidiariesdocuments or information becomes available;
(fh) to advise the Underwriters promptly of the happening occurrence of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations whichwhich would, in the reasonable judgment of the Trust and Company or the Companyreasonable opinion of Counsel to the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and, during such time, to prepare and furnish promptly furnish to the Underwriterunderwriters, at no expense to the Trust's and the Company's expenseUnderwriters, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(gi) to make generally available to its security holders, and to deliver to you, as soon as practicable an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than 15 months thereafter;
(j) to furnish to its shareholders as soon as practicable after the Representatives end of each fiscal year an annual report (including a balance sheet and counsel statements of income, shareholders' equity and of cash flow of the Company for such fiscal year, accompanied by a copy of the Underwriters, without charge, certificate or report thereon of nationally recognized independent certified public accountants);
(ik) signed to furnish to you such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iithereto) as you shall reasonably request and sufficient conformed copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution to each of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.other Underwriters;
(hl) to apply the net proceeds of from the sale of the Capital Securities and Shares substantially in the Debentures in accordance with the statements manner set forth under the caption "Use of Proceeds" in the Prospectus;
(m) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to make generally available to its security holders the Underwriters and to dealers (including costs of mailing and shipment), (ii) the Representatives as soon as practicableregistration, but in any event not later than the end issue, sale and delivery of the fiscal quarter first occurring after Shares, (iii) the first anniversary producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD and (vii) the performance of the Company's other obligations hereunder, provided that except as set forth in this section 3(m), you shall pay your own costs and expenses, including the costs and expenses of your own counsel, any transfer taxes on the Firm Shares and Additional Shares that you may sell and the expenses of advertising any offering of the Firm Shares and Additional Shares made by you;
(n) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (h) above, subject to appropriate assurances regarding confidentiality, a copy of any document proposed to be filed pursuant to Section 13, 14 or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a15(d) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration StatementExchange Act;
(jo) not to use its best efforts sell, offer to effect and maintain the quotation sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other shares of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities Company that are traded in substantially similar to Common Stock or permit the over-the-counter market and quotations for which are reported by registration under the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent Act of the Representatives, any shares of Common Stock for a period of 180 days after the date hereof (the "Lock-up Period"), without the prior written consent of ▇▇▇▇▇▇, except for (i) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of outstanding options or warrants as disclosed in the Registration Statement and the Prospectus, and (iii) the issuance of employee stock options not exercisable during the Lock-up Period pursuant to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of stock option plans described in the Trust or Registration Statement and the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;Prospectus; and
(mp) to use its best efforts to cause its officers, directors and affiliates not the Common Stock to be listed for quotation on the National Association of Securities Dealers Automated Quotation National Market System (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby"NASDAQ").
Appears in 1 contract
Certain Covenants. (i) The Trust Service Provider acknowledges and agrees that the Company hereby covenant and agree with each Underwriter Registrable Securities have not been and, except as follows:
(a) to furnish such information as may be required and otherwise to cooperate provided in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;
(b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery Section 7 of this Agreement) to , are not being registered under the Underwriters as many copies provisions of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulationsor any state securities laws, which Prospectus and any amendments or supplements thereto furnished to that the Underwriters will Registrable Securities may not be identical to the version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective transferred unless registered under the Securities Act Regulations;or an exemption from registration applies.
(d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus(A) The Service Provider acknowledges and agrees that, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of until such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information time as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Registrable Securities is required to be delivered are registered under the Securities Act Regulations whichor an exemption from registration applies, the Registrable Securities may bear a restrictive legend in substantially the judgment following form (and a stop-transfer order may be placed against transfer of the Trust and the CompanyRegistrable Securities): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
AS AMENDED (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference thereinTHE “SECURITIES ACT”), (iiOR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestUNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
(h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;
(k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;
(l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;
(m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and
(n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Advisory Services Agreement (Snap Interactive, Inc)