Covenants of the Transaction Entities. Each of the Transaction Entities, jointly and severally, covenant with each Underwriter as follows: (a) To furnish to the Representatives, without charge, three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in Milwaukee, Wisconsin, without charge, prior to 10:00 a.m. Eastern Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. (b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object. (c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (d) To advise the Representatives promptly (i) of any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information with respect thereto, (ii) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to the Prospectus shall have been filed, (iii) of the receipt of any comments from the Commission, (iv) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible. (e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (g) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430B under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules). (h) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares. (i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (j) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. (k) To use its best efforts to maintain the listing of the Shares on the NYSE. (l) During the period beginning on the date of the Underwriting Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the Underwriters, not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, (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 the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection shall not apply to (i) the Shares to be sold hereunder, (ii) the grant of options to purchase shares of Common Stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writing, (iv) the issuance of OP Units in connection the acquisition of additional properties. (m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares. (n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act. (o) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (p) Not, at any time at or after the execution of this Agreement, to offer or sell any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offering or sale of the Shares, except in each case other than the Prospectus. (q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (r) To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus. (s) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) the time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 6(m) above. (t) The Company will use its best efforts to qualify and elect to be taxed as a REIT under the Code for its taxable year ended December 31, 2013 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors of the Company determines that it is no longer in the best interests of the Company to qualify as a REIT. (u) Each of the Transaction Entities will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)
Covenants of the Transaction Entities. Each of the Transaction Entities, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to the Representatives, without charge, three [—] signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in Milwaukee, Wisconsin, without charge, prior to 10:00 a.m. Eastern Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) To advise the Representatives promptly (i) of any request by the Commission for amendments or supplements to the Registration Statement, the any Preliminary Prospectus or the Prospectus or for additional information with respect thereto, (ii) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to the Prospectus shall have been filed, (iii) of the receipt of any comments from the Commission, (iv) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430B 430A or 430C under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(h) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offering offer and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(j) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(k) To use its best efforts to effect and maintain the listing of the Shares on the NYSE.
(l) During the period beginning on the date of the Underwriting Agreement and continuing to and including 60 180 days after the date of the Prospectus, and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the Underwriters, not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common StockStock (including OP Units), (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 the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common StockStock (including OP Units), or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock common stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection shall not apply to (i) the Shares to be sold hereunder, (ii) the grant of options to purchase shares of Common Stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writing, (iv) the issuance of OP Units in connection with the Formation Transactions or the acquisition of additional properties. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed by this agreement 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. The Company shall promptly notify the Representatives of any earnings release, news or event that may give rise to an extension of the initial 180-day restricted period.
(m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(o) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(p) Not, at any time at or after the execution of this Agreement, to offer or sell any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offering offer or sale of the Shares, except in each case other than the Prospectus.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(r) To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(s) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) the time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 6(m) above.
(t) The Company will use its best efforts to qualify and elect to be taxed as a REIT under the Code for its taxable year ended ending December 31, 2013 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors of the Company determines that it is no longer in the best interests of the Company to qualify as a REIT.
(u) Each of the Transaction Entities will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)
Covenants of the Transaction Entities. Each of the The Transaction Entities, jointly and severally, covenant Entities covenants with each Underwriter as follows:
(a) To furnish to the RepresentativesRepresentative, without charge, three signed copies of the Registration Statement (including exhibits theretothereto and documents incorporated by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits theretothereto but including documents incorporated by reference) and to furnish to the Representatives Representative in Milwaukee, WisconsinNew York City, without charge, prior to 10:00 a.m. Eastern Time New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f6(e) or 6(g6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as the Representatives Representative may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T..
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives Representative a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives objectRepresentative reasonably objects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. .
(c) To furnish to the Representatives Representative a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives Representative reasonably objectobjects.
(cd) Not to take any action that would result in an Underwriter or the Company Transaction Entities being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) To advise the Representatives promptly (i) of any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information with respect thereto, (ii) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to the Prospectus shall have been filed, (iii) of the receipt of any comments from the Commission, (iv) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives Representative will furnish to the Company) to which Shares may have been sold by the Representatives Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430B under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(h) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise endeavor to qualify the Shares for offer and sale under the securities or “blue sky” Blue Sky laws of such jurisdictions as the Representatives Representative shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(jh) To make generally available to the Company’s security holders and to the Representatives Representative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Transaction Entities’ counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Transaction Entities and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Shares on NYSE American, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement, (x) the reasonable fees and disbursements of counsel to the Underwriters in connection with the transactions contemplated in this Agreement, inclusive of those fees and disbursements described above, in an aggregate amount not to exceed $65,000 and (xi) all other costs and expenses incident to the performance of the obligations of the Transaction Entities hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
(j) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the Restricted Period (as defined in this Section 6).
(k) To use its best efforts If at any time following the distribution of any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act there occurred or occurs an event or development as a result of which such Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to maintain state a material fact necessary in order to make the listing statements therein, in the light of the Shares circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company also covenants with each Underwriter that, without the prior written consent of the Representative on behalf of the NYSE.
(l) During Underwriters, it will not, and will not publicly disclose an intention to, during the period beginning on the date of the Underwriting Agreement and continuing to and including ending 60 days after the date of the ProspectusProspectus (the “Restricted Period”), and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the Underwriters, not to (i1) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (ii2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) 1 or (ii) 2 above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, otherwise or (iii3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection the foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (ii) the grant of options to purchase shares of Common Stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iiiB) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writing, (iv) the issuance of OP Units in connection the acquisition of additional properties.
(m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(o) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(p) Not, at any time at or after the execution of this Agreement, to offer or sell any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offering or sale of the Shares, except hereof as described in each case other than the Prospectus.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(r) To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and Prospectus, or (C) facilitating the Prospectus.
(s) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later establishment of (a) the time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically trading plan on behalf of a shareholder, officer or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 6(m) above.
(t) The Company will use its best efforts to qualify and elect to be taxed as a REIT under the Code for its taxable year ended December 31, 2013 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors director of the Company determines pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of shares of Common Stock, provided that it (i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is no longer in the best interests required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to qualify as a REITthe effect that no transfer of Common Stock may be made under such plan during the Restricted Period.
(u) Each of the Transaction Entities will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.
Appears in 1 contract
Sources: Underwriting Agreement (Strawberry Fields REIT, Inc.)
Covenants of the Transaction Entities. Each of the Transaction Entities, Entities jointly and severally, covenant severally covenants and agrees with each Underwriter as followsthe Agents to:
(a) To furnish to the Representatives, without charge, three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in Milwaukee, Wisconsin, without charge, prior to 10:00 a.m. Eastern Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, Cause the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to Rule 424(b) of the Securities Act Rules and Regulations on or before the second business day after the date hereof (or such Rule. To furnish earlier time as may be required by the Securities Act Rules and Regulations) (but only if the Agents or your counsel have not reasonably objected thereto by notice to the Representatives Transaction Entities after having been furnished a copy a reasonable time prior to filing) and will notify the Agents promptly of each proposed free writing such filing. During the period in which a prospectus relating to the Notes is required to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) delivered under the Securities Act a free writing prospectus prepared by or on behalf of Act, the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) To advise the Representatives promptly Transaction Entities will (i) notify the Agents promptly of the time when any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration StatementStatement or Prospectus that, in your opinion, may be necessary or advisable in connection with your distribution of the Preliminary Prospectus or the Prospectus or for additional information with respect theretoNotes, and (iiiii) when any post-effective amendment to the Registration Statement shall become effective, or any file no amendment or supplement to the Registration Statement or Prospectus (other than any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Agents or your counsel shall have reasonably object by notice to the Transaction Entities after having been filedfurnished a copy a reasonable time prior to the filing.
(b) Advise you, promptly after either Transaction Entity shall receive notice or obtain knowledge thereof, (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, (ii) of the suspension of the qualification or registration of the Notes for offering or sale in any jurisdiction, (iii) of the receipt initiation or threatening (in writing) of any comments from the Commission, proceeding for any such purpose or (iv) of any change in the rating assigned by the Rating Agencies or any other nationally recognized statistical rating organization to any debt securities (including the Notes) of the Operating Partnership, or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any such debt securities, or the withdrawal by any nationally recognized statistical rating organization of its rating of such debt securities; and the Transaction Entities will promptly use their best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Comply with all requirements imposed upon them by the Company becomes the subject of a proceeding under Section 8A of Securities Act, the Securities Act Rules and Regulations, the Exchange Act, the Exchange Act Rules and Regulations and the TIA as from time to time in connection with force, so far as necessary to permit the offering continuance of the Sharessales of, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectusdealings in, the Time of Sale Prospectus or Notes as contemplated by the provisions hereof and the Prospectus; and if the Commission should enter . If during such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and period any event shall occur or condition exist occurs as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or ifwhich, in the opinion of counsel for your counsel, the Underwriters, it is Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that make the statements in therein not misleading or the Time of Sale Prospectus as so then amended or supplemented will not, in the light would include an untrue statement of the circumstances when delivered a material fact or omit to state a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaserthen existing, not misleading, or if, in the opinion of counsel for the Underwriters, if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; the Transaction Entities will promptly notify the Agents and will amend or supplement the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effectiveor Prospectus (at the expense of the Transaction Entities) so as to correct such statement or omission or effect such compliance.
(d) Furnish to the Agents copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and (ii) if Rule 430B all amendments and supplements to the Registration Statement and Prospectus that are filed with the Commission during the period in which a prospectus relating to the Notes is required to be delivered under the Securities Act is used, when the Prospectus is (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as available and in such quantities as the Agents may from time to time reasonably request.
(e) Furnish the Agents with copies of filings of the Transaction Entities under the Securities Act and Exchange Act and with all other financial statements and reports it distributes generally to the holders of any class of its capital stock during the period of five years commencing on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under of the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules)Rules and Regulations.
(hf) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(j) To make Make generally available to the Company’s its security holders and to the Representatives as soon as practicable and in the manner contemplated by Rule 158 of the Securities Act Rules and Regulations, but in any event not later than 15 months after the end of the Transaction Entity's current fiscal quarter, an earnings earning statement (which need not be audited) covering a 12-month period of at least twelve months beginning after the effective date upon which the Prospectus is filed pursuant to Rule 424(b) of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which Act Rules and Regulations that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderof the Securities Act Rules and Regulations and will advise the Agents in writing when such statement has been made available.
(kg) To use its best efforts Pay, or reimburse if paid by you, whether or not the transactions contemplated by this Distribution Agreement are consummated or this Distribution Agreement is terminated, all costs and expenses incident to maintain the listing performance of the Shares on the NYSE.
(l) During the period beginning on the date obligations of the Underwriting Agreement Transaction Entities under this Distribution Agreement, including but not limited to costs and continuing to and including 60 days after the date expenses of the Prospectus, and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the Underwriters, not or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits thereto, the Prospectus and any amendment or supplement to issuethe Registration Statement or the Prospectus, offer(ii) the word processing and reproduction of the Indenture and the Notes, pledge(iii) the costs incurred by the Transaction Entities in furnishing (including costs of shipping, sellmailing and courier) such copies of the Registration Statement, contract the Prospectus and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Notes by the Agents or by dealers to sellwhom Notes may be sold, sell (iv) any option registration or contract qualification of the Notes for offer and sale under the securities or blue sky laws of such jurisdictions designated by you, including the reasonable fees, disbursements and other charges of your counsel in connection therewith, and the preparation of a blue sky memoranda, (iv) the fees charged by each of the Rating Agencies for the rating of the Notes at the request of the Operating Partnership, (v) counsel to purchasethe Transaction Entities, purchase (vi) the transfer agent for the Notes, (vii) the costs and expenses of the Trustee under the Indenture and (viii) KPMG Peat Marwick LLP ("KPMG") or any option other accountants engaged by the Transaction Entities in connection with the offering of the Notes.
(h) Qualify the Notes for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Agents may designate as necessary, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes; provided, however, that -------- ------- the Operating Partnership shall not be obligated to file any general consent to service of process or contract to sellqualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Operating Partnership will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided. The Operating Partnership will promptly advise the Agents of the receipt by the Operating Partnership of any notification with respect to the suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(i) Not take, grant at any option, right or warrant to purchase, lend, or otherwise transfer or dispose oftime, directly or indirectly, any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, (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 the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection shall not apply to (i) the Shares to be sold hereunder, (ii) the grant of options to purchase shares of Common Stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writing, (iv) the issuance of OP Units than in connection the acquisition of additional properties.
(m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(o) Not to take, directly or indirectlythis Distribution Agreement, any action designeddesigned to stabilize, or which will constitute, or has constituted, or might reasonably be expected to cause or result in in, or which has constituted or which might reasonably be expected to constitute the stabilization or manipulation of of, the price of any security the Notes.
(j) Take all reasonable action necessary to enable the Rating Agencies to provide their respective credit ratings of the Company Notes.
(k) Execute and deliver the Supplemental Indenture designating the Notes as the debt securities to facilitate be offered, and its terms and provisions in accordance with the provisions of the Indenture.
(l) Apply the net proceeds to the Operating Partnership from the sale or resale of the SharesNotes by the Operating Partnership as set forth under the caption "Use of Proceeds" in the Prospectus.
(m) Prepare, with respect to any Notes to be sold to or through an Agent or Agents pursuant to this Distribution Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by such Agent or Agents. The Operating Partnership will deliver such Pricing Supplement no later than 11:00 a.m., New York City time, on the business day following the date of the Operating Partnership's acceptance of the offer for the purchase of such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not later than the close of business of the Commission on the fifth business day after the date on which such Pricing Supplement is first used.
(n) Furnish, within two (2) business days following the date on which there shall be released to the general public interim financial statement information related to either of the Transaction Entities with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, such information to the Agents, and cause the Prospectus to be amended or supplemented to include or incorporate by reference financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding thereof and as shall be required by the Securities Act or the Securities Act Rules and Regulations.
(o) Furnish, within two (2) business days following the date on which there shall be released to the general public financial information included in or derived from the audited financial statements of either of the Transaction Entities for the preceding fiscal year, such information to the Agents, and cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant to the Exchange Act or the Securities Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements and as shall be required by the Securities Act or the Securities Act Rules and Regulations.
(p) Not, at any time at or after Use its best efforts to ensure that the execution of this Agreement, Company meets the requirements to offer or sell any qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) Notes are to occur, unless otherwise specified in connection with the offering or sale of the Shares, except in each case other than the Prospectus.
(q) To maintain If requested by any Agent in connection with a transfer agent andpurchase by it of Notes as principal in accordance with Section 4(a) hereof, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(r) To apply the net proceeds cause such transaction to be subject to the Company from terms of such stand-off provision as shall be agreed by the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus Operating Partnership and the Prospectus.
(s) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company such Agent at any time prior to the later of (a) the time when a prospectus relating of such agreement to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 6(m) abovepurchase Notes as principal.
(t) The Company will use its best efforts to qualify and elect to be taxed as a REIT under the Code for its taxable year ended December 31, 2013 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors of the Company determines that it is no longer in the best interests of the Company to qualify as a REIT.
(u) Each of the Transaction Entities will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.
Appears in 1 contract
Covenants of the Transaction Entities. Each of the Transaction Entities, jointly and severally, covenant covenants and agrees with each Underwriter as followsthe Underwriters that:
(i) The Transaction Entities will (a) To furnish to the Representatives, without charge, three signed copies of the Registration Statement (including exhibits thereto) prepare and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in Milwaukee, Wisconsin, without charge, prior to 10:00 a.m. Eastern Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to timely file with the Commission within the applicable period specified in under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, (b) not file any prospectus amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Securities and (c) file on a timely basis all reports and any definitive proxy or information statements required to be filed pursuant to such Rule. To furnish by the Transaction Entities with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Securities by the Underwriters; provided, however, that for each such report or preliminary or definitive proxy or information statement, neither Transaction Entity will file any such report or preliminary or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives shall have reasonably objectobjected in writing or which is not in compliance with the Exchange Act.
(ii) The Transaction Entities will (a) not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by a Transaction Entity with the Commission under Rule 433 under the Securities Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of each Issuer Free Writing Prospectus included in Schedule C hereto; (b) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus; (c) Not comply with the requirements of Rules 163, 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping; and (d) not take any action that would result in an Underwriter or the Company a Transaction Entity being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the such Underwriter that the such Underwriter otherwise would not have been required to file thereunder.
(diii) To The Transaction Entities will advise the Representatives promptly (i) of any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information with respect thereto, (iia) when any post-effective amendment to the Registration Statement or new registration statement relating to the Securities shall have become effective, or any amendment or supplement to the Prospectus shall have been filed, (iiib) of the receipt of any comments from the Commission, (ivc) if of any request of the Company becomes Commission for amendment of the subject Registration Statement or the filing of a proceeding under Section 8A new registration statement or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any additional information, and (d) of the Securities Act in connection with issuance by the offering Commission of the Shares, or (v) of notice of institution of proceedings for, or the entry of a any stop order, order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, the Time of Sale any Issuer Free Writing Prospectus or the Prospectus; , or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Securities, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, and if the Commission should enter such a stop order, to Transaction Entities will use its their best efforts to prevent (x) the issuance of any such stop order suspending the effectiveness of the Registration Statement or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y) any such suspension of the qualification of the Securities for offering or sale in any jurisdiction, and to obtain the lifting or removal of such order as soon as possiblepossible the lifting of any such order, if issued, or such suspension of qualification.
(eiv) The Company will pay the fees applicable to the Registration Statement in connection with the offering of the Securities within the time required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act.
(v) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a any time when Securities remain unsold by the Prospectus Underwriters a Transaction Entity receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Transaction Entities will (a) promptly notify the Representatives, (b) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representatives, (c) use their best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not yet available otherwise effective immediately pursuant to prospective purchasers Rule 462 under the Securities Act), and any event shall occur (d) promptly notify the Representatives of such effectiveness. The Transaction Entities will take all other action necessary or condition exist as a result of which it is necessary appropriate to amend or supplement permit the Time of Sale Prospectus in order to make the statements therein, in the light public offering and sale of the circumstances, not misleading, or if any event shall occur or condition exist Securities to continue as a result of which the Time of Sale Prospectus conflicts with the information contained contemplated in the Registration Statement then on filethat was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which a Transaction Entity has otherwise become ineligible. References herein to the Registration Statement relating to the Securities shall include such new registration statement or post-effective amendment, or ifas the case may be.
(vi) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, in any of the opinion of counsel for Securities remain unsold by the Underwriters, it is necessary the Transaction Entities will, prior to amend or supplement the Time of Sale Prospectus Renewal Deadline file, if they have not already done so and are eligible to comply with applicable lawdo so, forthwith a new automatic shelf registration statement relating to preparethe Securities, in a form satisfactory to the Representatives. If the Transaction Entities are not eligible to file an automatic shelf registration statement, the Transaction Entities will, prior to the Renewal Deadline, if they have not already done so, file with the Commission and furnish, at its own expense, a new shelf registration statement relating to the Underwriters and to any dealer upon requestSecurities, either amendments or supplements in a form satisfactory to the Time Representatives, and will use their best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Transaction Entities will take all other action necessary or appropriate to permit the public offering and sale of Sale Prospectus so that the statements Securities to continue as contemplated in the Time expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(vii) The Transaction Entities will deliver to, or upon the order of, the Representatives, from time to time, as many copies of Sale any Preliminary Prospectus or any Issuer Free Writing Prospectus as so amended the Representatives may reasonably request. The Transaction Entities will deliver to, or supplemented will notupon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the light notice referred to under Rule 173(a) under the Securities Act) is required under the Securities Act, as many copies of the circumstances when delivered to a prospective purchaserProspectus in final form, be misleading or so that the Time of Sale Prospectus, as thereafter amended or supplemented, as the Representatives may reasonably request. The Transaction Entities will no longer conflict with furnish upon request to the Representatives signed copies of the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, Statement and all amendments thereto including all exhibits filed therewith.
(viii) The Transaction Entities will comply with applicable law.
(f) Ifthe Securities Act and the Rules and Regulations and the Exchange Act, during such period after and the first date rules and regulations of the public offering Commission thereunder, so as to permit the completion of the Shares distribution of the Securities as contemplated in this Agreement and the opinion Prospectus. Subject to the provisions of counsel for Section 4(i) hereof, if during the Underwriters the Prospectus period in which a prospectus (or or, in lieu thereof thereof, the notice referred to in under Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, a dealer any event shall occur or condition exist as a result of which which, in the judgment of the Transaction Entities or in the opinion of counsel for the Underwriters, it is becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or ifor, in the opinion of counsel for the Underwriters, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable any law, forthwith to prepare, the Transaction Entities promptly will either (a) prepare and file with the Commission and furnish, at its own expense, an appropriate amendment to the Underwriters and Registration Statement or supplement to the dealers Prospectus or (whose names b) prepare and addresses file with the Representatives will furnish to Commission an appropriate filing under the Company) to Exchange Act which Shares may have been sold shall be incorporated by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to reference in the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(ix) Subject to the provisions of Section 4(i) hereof, if the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Transaction Entities or in lieu thereof the notice referred reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in Rule 173(aorder to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Transaction Entities promptly will either (a) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (b) prepare and file with the Commission an appropriate filing under the Securities Act) is delivered to a purchaserExchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Prospectus, as amended or supplemented, General Disclosure Package will comply with applicable law.
(gx) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the The Company will use make generally available to its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Actsecurity holders, as soon as possible; and the Company will advise the Representatives promptly andit is practicable to do so, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430B under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(h) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process but in any jurisdiction (excluding service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(j) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve event not later than 15 months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement (which need not be audited) in reasonable detail, covering a period of twelve consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions requirements of Section 11(a) of the Securities Act and Rule 158 thereunderunder the Securities Act.
(kxi) To The Company will, for a period of five years from the Closing Date, furnish upon request to the Representatives, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year and the Company will furnish upon request to the Representatives, as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders.
(xii) The Transaction Entities will use the net proceeds from the sale of the Securities pursuant to this Agreement in the manner specified under the heading “Use of Proceeds” in the Prospectus.
(xiii) The Company will use its reasonable best efforts to continue to meet the requirements to qualify as a real estate investment trust under the Code for so long as the Board of Directors of the Company deems it in the best interests of the Company’s stockholders to remain so qualified. The Operating Company will use its reasonable best efforts to maintain its classification for U.S. federal income tax purposes as a disregarded entity or partnership that is not a “publicly traded partnership” taxable as a corporation.
(xiv) The Company will use its best efforts to effect and maintain the listing of the Shares Securities on the NYSE.
(lxv) During the a period beginning on of 30 days from the date of the Underwriting Agreement and continuing to and including 60 days after the date this Agreement, neither of the ProspectusTransaction Entities will, and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the UnderwritersRepresentatives, not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock Stock, or any other securities (including OP Units) convertible into or exercisable or exchangeable for shares of 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 other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of the shares of Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection foregoing shall not apply to (i) the Shares to be sold hereunderSecurities, (ii) the grant issuance by the Company of shares of Common Stock upon the redemption of units of the Operating Company or another subsidiary pursuant to the applicable operating or partnership agreement that are outstanding prior to the execution of this Agreement and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (iii) the issuance of shares of Common Stock in exchange for the Operating Company’s 2.750% exchangeable senior notes due 2028, (iv) the issuance by the Company of shares of Common Stock, options to purchase shares of Common Stock Stock, restricted stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereofrestricted stock units, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iii) or the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant options to purchase shares of Common Stock or the conversion vesting of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writingrestricted stock or restricted stock units, (iv) the issuance of OP Units in connection the acquisition of additional properties.
(m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(o) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(p) Not, at any time at or after the execution of this Agreement, to offer or sell any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offering or sale of the Shares, except in each case other than the Prospectus.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(r) To apply the net proceeds pursuant to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” any incentive or compensation plan or arrangement described in the Registration Statement, the Time of Sale Prospectus General Disclosure Package and the Prospectus.
, or the filing of a registration statement on Form S-8 with respect thereto, or (sv) The Company will promptly notify the Representatives if issuance by the Company ceases of shares of Common Stock or securities convertible into, exchangeable for or that represent the right to be an Emerging Growth Company at any time prior to the later receive shares of Common Stock in connection with (ax) the time when a prospectus relating to the Shares is not required acquisition by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act Company or any similar rule) and (b) the expiration of its subsidiaries of the lock-up period described securities, business, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in Section 6(mconnection with any such acquisition, and the issuance of any such securities pursuant to any such agreement, or (y) above.
(t) The Company will use its best efforts to qualify and elect to be taxed as a REIT under the Code for its taxable year ended December 31any joint ventures, 2013 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors commercial relationships or other strategic transactions of the Company determines or any of its subsidiaries; provided that it is no longer in the best interests aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clause (v) shall not exceed 10% of the Company to qualify as a REIT.
(u) Each total number of the Transaction Entities will comply in all material respects with all applicable provisions shares of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.Common Stock outstanding imme
Appears in 1 contract
Covenants of the Transaction Entities. Each of the Transaction Entities, jointly and severally, covenant with each Underwriter as follows:
(a) To Upon the request of the Representatives, to furnish to the Representatives, without charge, three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in MilwaukeeSt. Petersburg, WisconsinFlorida, without charge, prior to 10:00 a.m. Eastern Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) To advise the Representatives promptly (i) of any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information with respect thereto, (ii) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to the Prospectus shall have been filed, (iii) of the receipt of any comments from the Commission, (iv) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares, or (v) of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430B under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(h) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(i) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(j) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(k) To use its best efforts to maintain the listing of the Shares on the NYSE.
(l) During the period beginning on the date of the Underwriting Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives with the authorization to release the lock-up letter on behalf of the Underwriters, not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, (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 the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities (including OP Units) convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. Notwithstanding the foregoing, the Company may file a registration statement on Form S-8 registering shares of Common Stock that may be issued pursuant to the Company’s 2013 Equity Incentive Plan at any time following the date of the Underwriting Agreement without obtaining the consent of the Representatives. The restrictions contained in this subsection shall not apply to (i) the Shares to be sold hereunder, (ii) the grant of options to purchase shares of Common Stock or the issuance of other awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided any options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, (iii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Representatives have been advised in writing, (iv) the issuance of OP Units in connection the acquisition of additional propertiesproperties or (v) the issuance of shares of Common Stock upon redemption of OP Units in accordance with the Operating Partnership Agreement.
(m) To prepare, if the Representatives so request, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(n) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(o) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(p) Not, at any time at or after the execution of this Agreement, to offer or sell any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offering or sale of the Shares, except in each case other than the Prospectus.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(r) To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(s) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) the time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the lock-up period described in Section 6(m6(l) above.
(t) The Company will use its best efforts to qualify maintain its qualification and elect election to be taxed as a REIT under the Code for its taxable year ended ending December 31, 2013 2015 and thereafter and will use its best efforts to continue to qualify for taxation as a REIT under the Code unless the board of directors of the Company determines that it is no longer in the best interests of the Company to qualify as a REIT.
(u) Each of the Transaction Entities will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect.
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)