Exhibit 1.1
3,700,000 Shares
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DIGITAL MUSIC GROUP,
INC.
UNDERWRITING
AGREEMENT
, 2006
I-Bankers Securities, Inc.
FTN Midwest Securities Corp.
As Representatives of the several
Underwriters named in
Schedule I hereto
c/o I-Bankers Securities, Inc.
1560 East Southlake Boulevard, Suite
232
Southlake, Texas 76092
Dear Sirs:
Digital Music Group, Inc., a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions contained herein, to sell to the
underwriters named on Schedule I to this Agreement (the
“Underwriters”) for whom you are acting as
representatives (the “Representatives”), an aggregate
of 3,700,000 shares (the “Firm Shares”) of the
Company’s common stock, $.01 par value per share
(“Common Stock”), at a purchase price (net of discounts
and commissions) of $
per Firm Share. The Underwriters, severally and not jointly, agree
to purchase from the Company the number of Firm Shares set forth
opposite their respective names on Schedule I attached hereto and
made a part hereof at a purchase price (net of discounts and
commissions) of $
per Firm Share. The Firm Shares and the Option Shares (as
hereinafter defined) are to be offered initially to the public (the
“Offering”) at the offering price of $
per Firm Share (the Firm Shares and the Option Shares are
hereinafter referred to collectively as the
“Shares”).
The Company has prepared and filed
in conformity with the requirements of the Securities Act of 1933,
as amended (the “Act”), and the published rules and
regulations thereunder (the “Rules”) adopted by the
Securities and Exchange Commission (the “Commission”),
a Registration Statement (as hereinafter defined) on Form S-1 (No.
333-128687), including a Preliminary Prospectus (as hereinafter
defined) relating to the Offering. Copies of such Registration
Statement (including all amendments thereof) and of the related
Preliminary Prospectus have heretofore been delivered by the
Company to the Representatives. The term “Preliminary
Prospectus” means any preliminary prospectus included at any
time as a part of the Registration Statement or filed with the
Commission by the Company pursuant to Rule 424(a) of the Rules. The
term “Registration Statement” as used in this Agreement
means the initial registration statement (including all exhibits,
financial schedules and all documents
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Plus an option to purchase up to
555,000 additional shares of Common Stock to cover
over-allotments.
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and information deemed to be a part of the
Registration Statement through incorporation by reference or
otherwise), as amended at the time and on the date it becomes
effective (the “Effective Date”), including the
information (if any) contained in the form of final Prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and
deemed to be part thereof at the time of effectiveness pursuant to
Rule 430A of the Rules. If the Company files an abbreviated
registration statement to register additional Shares pursuant to
Rule 462(b) under the Rules (the “462(b) Registration
Statement”), then any reference herein to the Registration
Statement shall also be deemed to include such 462(b) Registration
Statement. The term “Prospectus” as used in this
Agreement means the Prospectus in the form included in the
Registration Statement at the time of effectiveness or, if Rule
430A of the Rules is relied on, the term Prospectus shall also
include the final Prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules.
The Company understands that the
Underwriters propose to make a public offering of the Shares, as
set forth in and pursuant to the Prospectus, as soon after the
Effective Date as the Representatives deem advisable after this
Agreement has been executed and delivered.
1. Sale, Purchase, Delivery and
Payment for the Shares . On the basis of the representations,
warranties and agreements contained in, and subject to the terms
and conditions of, this Agreement:
(a) The Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $
per share of Common Stock ($
net of discounts and commissions) (the “Initial
Price”), the number of Firm Shares set forth opposite the
name of such Underwriter under the column “Number of Firm
Shares to be Purchased” on Schedule I to this Agreement,
subject to adjustment in accordance with Section 6.
(b) For the purposes of covering any
over-allotments in connection with the distribution and sale of the
Firm Shares, the Company hereby grants to the Underwriters,
severally and not jointly, an option to purchase up to an
additional 555,000 shares of Common Stock in the aggregate from the
Company (the “Over-allotment Option”). Such additional
555,000 shares of Common Stock are hereinafter referred to as
“Option Shares.” The purchase price to be paid for the
Option Shares will be the same price per Option Share as the price
per Firm Share set forth in Section 1(a).
The Over-allotment Option granted
pursuant to Section 1(b) may be exercised by the
Representatives as to all (at any time) or any part (from time to
time) of the Option Shares within 45 days after the Effective Date
only for the purpose of covering over-allotments that may be made
in connection with the Offering and distribution of the Firm
Shares. The Underwriters will not be under any obligation to
purchase any Option Shares prior to the exercise of the
Over-allotment Option. The Over-allotment Option granted hereby may
be exercised by the giving of oral notice to the Company by the
Representatives, which must be confirmed in writing by overnight
mail or facsimile transmission, setting forth the number of Option
Shares to be purchased by the several Underwriters and the date and
time for delivery of and payment for the Option Shares (the
“Option Closing Date”), which will not be later than
five full business days
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nor earlier than the Closing Date (as
hereinafter defined) or such other time as shall be agreed upon by
the Company and the Representatives, at the offices of I-Bankers
Securities, Inc. (“I-Bankers”) or at such other place
as shall be agreed upon by the Company and the Representatives.
Upon exercise of the Over-allotment Option, the Company will issue
and sell to the Underwriters, and, subject to the terms and
conditions set forth herein, each of the Underwriters, acting
severally and not jointly, will purchase the number of Option
Shares specified in such notice, subject to adjustment in
accordance with Section 6 and subject in each case to
adjustment as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price
for, and delivery of the certificates for, the Firm Shares shall be
made at 10:00 a.m., New York time, on
, 2006, or such other date, not later than the fifth business day
thereafter, or at such earlier time as shall be agreed upon by the
Representatives and the Company at the offices of I-Bankers or at
such other place as shall be agreed upon by the Representatives and
the Company. The hour and date of delivery and payment for the Firm
Shares are called “Closing Date.” Payment for the Firm
Shares shall be made on the Closing Date to a bank account
designated by the Company by wire transfer in Federal (same day)
funds against delivery to the Representatives for the respective
accounts of the Underwriters of the certificates (in form and
substance satisfactory to the Underwriters) representing the Firm
Shares to be purchased by them (or through the facilities of the
Depository Trust Company (“DTC”) for the account of the
Underwriters). The Firm Shares shall be registered in such name or
names and in such authorized denominations as the Representatives
may request in writing at least two full business days prior to the
Closing Date. The Company will permit the Representatives to
examine and package the Firm Shares for delivery, at least one full
business day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Shares, except upon tender of
payment by the Representatives for all the Firm Shares.
In addition, in the event that any
or all of the Option Shares are purchased by the Underwriters,
payment of the purchase price, and delivery of the certificates
for, such Option Shares shall be made on the Option Closing Date at
the offices of I-Bankers or at such other place as shall be agreed
upon by the Representatives and the Company. Payment for such
Option Shares shall be made on the Option Closing Date to a bank
account designated by the Company by wire transfer in Federal (same
day) funds against delivery to the Representatives for the
respective accounts of the Underwriters of the certificates (in
form and substance satisfactory to the Underwriters) representing
such Option Shares to be purchased by them (or through the
facilities of DTC for the account of the Underwriters). Such Option
Shares shall be registered in such name or names and in such
authorized denominations as the Representatives may request in
writing at least two full business days prior to the Option Closing
Date. The Company will permit the Representatives to examine and
package such Option Shares for delivery, at least one full business
day prior to the Option Closing Date. The Company shall not be
obligated to sell or deliver such Option Shares except upon tender
of payment by the Representatives for all such Option
Shares.
It is understood that each
Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase
price for, the Firm Shares and the Option Shares, if any, that it
has agreed to purchase.
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(d) The Company hereby agrees to
issue and sell to the Representatives (and/or their affiliate
designees) warrants (the “Representatives’
Warrants”) for the purchase of an aggregate of 296,000 shares
of Common Stock (the “Representatives’ Shares”)
for an aggregate purchase price of $100. The Representatives’
Warrants shall be exercisable, in whole or in part, commencing one
year from the Effective Date and expiring on the five-year
anniversary of the Effective Date at an initial exercise price per
Representatives’ Share of $
, which is equal to 125% of the Initial Price. The
Representatives’ Warrants and the Representatives’
Shares are hereinafter referred to collectively as the
“Representatives’ Securities.” The
Representatives understand and agree that there are significant
restrictions against transferring the Representatives’
Warrants during the first 180 days after the Effective Date, as set
forth in the Representatives’ Warrants.
Payment of the purchase price of,
and delivery of the certificates for, the Representatives’
Warrants shall be made on the Closing Date. The Company shall
deliver to the Representatives, upon payment therefor, certificates
for the Representatives’ Warrants in the name or names and in
such authorized denominations as the Representatives may reasonably
request.
2. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter, as of the date hereof, as of the Closing Date and as
of each Option Closing Date (if any), as follows:
(a) At the time the Registration
Statement became effective and at all times subsequent thereto up
to the Closing Date and the Option Closing Date, if any, the
Registration Statement and the Prospectus will in all material
respects conform to the requirements of the Act and the Rules;
neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, on such dates, will contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The representation and warranty made in
this Section 2(a) does not apply to statements made or
statements omitted in reliance upon and in conformity with written
information furnished to the Company with respect to the
Underwriters by the Representatives expressly for use in the
Registration Statement or Prospectus or any amendment thereof or
supplement thereto.
(b) The Company has filed with the
Commission a Form 8-A registration statement providing for the
registration under the Securities Exchange Act of 1934, as amended
(“Exchange Act”), of the Common Stock, which
registration statement complies in all material respects with the
requirements of the Exchange Act. The registration of the Common
Stock under the Exchange Act has been declared effective by the
Commission on the date hereof. Neither the Commission nor, to the
Company’s knowledge, any state regulatory authority has
issued any order or threatened to issue any order preventing or
suspending the use of any Preliminary Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute any
proceedings with respect to such an order.
(c) The agreements and documents
described in the Registration Statement and the Prospectus conform
to the descriptions thereof contained therein in all material
respects and
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there are no agreements or other documents
required to be described in the Registration Statement or the
Prospectus or to be filed with the Commission as exhibits to the
Registration Statement that have not been so described or filed.
Each agreement or other instrument (however characterized or
described) to which the Company is a party or by which its property
or business is or may be bound or affected and (i) that is
referred to in the Prospectus, or (ii) is material to the
Company’s business, has been duly and validly executed by the
Company, is in full force and effect and is enforceable against the
Company and, to the Company’s knowledge, the other parties
thereto, in accordance with its terms, except (x) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally, (y) as enforceability of any indemnification or
contribution provision may be limited under the federal and state
securities laws, and (z) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought, and none
of such agreements or instruments has been assigned by the Company,
and neither the Company nor, to the Company’s knowledge, any
other party is in material breach or default thereunder and, to the
Company’s knowledge, no event has occurred that, with the
lapse of time or the giving of notice, or both, would constitute a
material breach or default thereunder. To the Company’s
knowledge, performance by the Company of the material provisions of
such agreements or instruments will not result in a material
violation of any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of
its assets or businesses, including, without limitation, those
relating to environmental laws and regulations. The Company is not
in violation of any term or provision of its certificate of
incorporation or by-laws. The Company is not in violation of any
franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any governmental agency or court, domestic or
foreign, having jurisdiction over the Company or any of its
properties or businesses, except for such violations that,
individually or in the aggregate, would not result in a material
adverse change in the condition, financial or otherwise, business,
prospects or assets of the Company (“Material Adverse
Effect”).
(d) No securities of the Company
have been sold by the Company to any person or persons controlling,
controlled by, or under common control with the Company within the
three years prior to the date hereof, except as disclosed in the
Registration Statement.
(e) The statistical and related data
included in the Registration Statement are based on or derived from
sources that the Company reasonably believes are reliable and
accurate.
(f) Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise specifically stated therein,
(i) there has been no Material Adverse Effect or termination
of any material customer contract, (ii) there have been no
material transactions entered into by the Company, other than as
disclosed in the Registration Statement, and (iii) no member
of the Company’s management set forth in the Registration
Statement has resigned from any position with the
Company.
(g) Subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, and except as may otherwise be
indicated or contemplated therein, the Company has not
(i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money or
(ii) declared or paid any dividend or made any other
distribution on or in respect to its equity securities.
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(h) To the knowledge of the Company,
Perry-Smith LLP (“Perry-Smith”), whose report is filed
with the Commission as part of the Registration Statement, are
independent accountants as required by the Act and the Rules.
Perry-Smith has not, during the periods covered by the financial
statements included in the Prospectus, provided to the Company any
“non-audit services”, as such term is used in
Section 10A(g) of the Exchange Act.
(i) The financial statements,
including the notes thereto and supporting schedules included in
the Registration Statement and Prospectus fairly present in all
material respects the financial position, the results of operations
and the cash flows of the Company at the dates and for the periods
to which they apply; and such financial statements have been
prepared in conformity with United States generally accepted
accounting principles, consistently applied throughout the periods
involved; and the supporting schedules included in the Registration
Statement present fairly in all material respects the information
required to be stated therein. Except as disclosed in the
Registration Statement, there are no material off-balance sheet
transactions, arrangements, obligations (including contingent
obligations) or any other relationships with unconsolidated
entities or other persons, that may have a material current or, to
the Company’s knowledge, a material future effect on the
Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or
expenses.
(j) The Company had at the date or
dates indicated in the Prospectus duly authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and in the “Capitalization” section of the
Prospectus. Based on the assumptions stated in the Registration
Statement and the Prospectus, the Company will have on the Closing
Date the adjusted stock capitalization set forth therein under the
column “Pro Forma Combined As Adjusted” contained in
the “Capitalization” section of the Prospectus. Except
as described in or expressly contemplated by the Registration
Statement, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company, any such convertible or exchangeable securities or any
such rights, warrants or options.
(k) All issued and outstanding
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable. The
outstanding Common Stock has been issued in compliance with the
exemption from registration contained in the Act and Rules and the
applicable state securities or Blue Sky laws and otherwise in
conformance with the Act and Rules and the applicable state
securities or Blue Sky laws.
(l) The Shares have been duly
authorized and, when issued and paid for, will be validly issued,
fully paid and non-assessable and the holders thereof are not and
will not be subject to personal liability for obligations of the
Company solely by reason of being such holders. The Shares are not
subject to the preemptive rights of any holders of any security of
the
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Company or similar contractual rights granted by
the Company, other than pursuant to Second Amended and Restated
Stockholders Agreement, dated September 8, 2005, by and among
Digital Music Works International, Inc. and certain shareholders,
which rights have been waived for purposes of the Offering. When
issued as contemplated by the Prospectus, the Shares will not be
subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company.
All corporate action required to be taken for the authorization,
issuance and sale of the Shares has been duly and validly taken.
The Common Stock conforms in all material respects to all
statements relating thereto contained in the Registration Statement
and the Prospectus. The Representatives’ Warrants have been
duly and validly authorized by the Company and, when issued, will
constitute the valid and binding obligations of the Company,
including, without limitation, the obligation to issue and sell,
upon exercise thereof and payment of the respective exercise prices
therefor, the number and type of securities of the Company called
for thereby in accordance with the terms thereof and such
Representatives’ Warrants are enforceable against the Company
in accordance with their respective terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification or
contribution provision may be limited under the federal and state
securities laws, and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be
brought.
(m) Except as set forth in the
Registration Statement and Prospectus, no holders of any securities
of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to
require the Company to register any such securities of the Company
under the Act or to include any such securities in a registration
statement to be filed by the Company.
(n) This Agreement has been duly and
validly authorized by the Company and , when executed and
delivered, will constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (ii) as enforceability of
any indemnification or contribution provision may be limited under
the federal and state securities laws, and (iii) that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to
the discretion of the court before which any proceeding therefor
may be brought.
(o) The execution, delivery, and
performance by the Company of this Agreement and the
Representatives’ Warrants, the consummation by the Company of
the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will
not, with or without the giving of notice or the lapse of time or
both (i) result in a breach of, or conflict with any of the
terms and provisions of, or constitute a default under, or result
in the creation, modification, termination or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any agreement or instrument to
which the Company is a party, except for any of the foregoing that,
individually or in the aggregate, would not result in a Material
Adverse Effect or (ii) result in any violation of the
provisions of the certificate of incorporation or the by-laws of
the Company, or (iii) violate in
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any law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign,
having jurisdiction over the Company or any of its properties or
business, except for such violations that, individually or in the
aggregate, would not result in a Material Adverse
Effect.
(p) The Company has the requisite
corporate power and authority, and has all material authorizations,
approvals, orders, licenses, certificates and permits of and from
all governmental regulatory officials and bodies that are,
necessary as of the date hereof to conduct its business as
described in the Prospectus.
(q) The Company has all corporate
power and authority to enter into this Agreement and the
Representatives’ Warrants and to perform its obligations
hereunder and thereunder. No consent, authorization or order of,
and no filing with, any court, government agency or other body is
required for the valid issuance, sale and delivery, of the Shares
and the consummation of the transactions and agreements
contemplated by this Agreement and the Representatives’
Warrants, except such as have been already obtained or will be
obtained prior to the Closing Date, except for notices pursuant to
federal and state securities laws in connection with the issuance
of the Representatives’ Warrants, which will be filed no
later than 15 days following the Closing Date.
(r) There is no action, suit,
proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s
knowledge, threatened against the Company, that is required to be
disclosed in the Registration Statement, or that would be
reasonably likely to result in a Material Adverse Effect, or that
would be reasonably likely to materially or adversely affect the
consummation of the transactions described in this
Agreement.
(s) The Company has been duly
organized and is validly existing as a corporation and is in good
standing under the laws of the State of Delaware, and is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of business requires such qualification,
except where the failure to so qualify would not be reasonably
likely to result in a Material Adverse Effect.
(t) Except as described in the
Prospectus, there are no claims, payments, arrangements, agreements
or binding commitments relating to the payment of a finder’s,
consulting or origination fee by the Company or, to the
Company’s knowledge, any of its current stockholders with
respect to the sale of the Shares hereunder or any other
arrangements, agreements or binding commitments of the Company or,
to the Company’s knowledge, any current stockholders of the
Company that may affect the Underwriters’ compensation, as
determined by the National Association of Securities Dealers, Inc.
(“NASD”).
(u) Except as contemplated by this
Agreement, the Company has not made any direct or indirect payments
(in cash, securities or otherwise) in connection with this Offering
(i) to any person, as a finder’s fee, consulting fee or
otherwise, (ii) to any NASD member or (iii) to any person
or entity that has any direct or indirect affiliation or
association with any NASD member, within the twelve months prior to
the date on which the Registration Statement was filed with the
Commission or thereafter.
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(v) None of the net proceeds of the
Offering will be paid by the Company to any NASD member or its
affiliates that participated in the Offering, except as
specifically authorized herein.
(w) Except as disclosed in writing
by the Company to the Representatives prior to the date of this
Agreement, to the knowledge of the Company, no officer, director or
beneficial owner of at least 5% of the Company’s outstanding
Common Shares has any direct or indirect affiliation or association
with any NASD member. The Company will advise the Representatives
and their counsel, if it learns that any officer, director or owner
of at least 5% of the Company’s outstanding Common Shares is
or becomes an affiliate or associated person of an NASD member
participating in the offering
(x) Neither the Company nor any of
its current stockholders or any other person acting on behalf of
the Company has, directly or indirectly, given or agreed to give
any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any
customer, supplier, employee or agent of a customer or supplier, or
official or employee of any governmental agency or instrumentality
of any government (domestic or foreign) or any political party or
candidate for office (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or other person who
was, is, or may be in a position to help or hinder the business of
the Company (or assist it in connection with any actual or proposed
transaction) that (i) might subject the Company to any damage
or penalty in any civil, criminal or governmental litigation or
proceeding, (ii) if not given in the past, might have had a
material adverse effect on the assets, business or operations of
the Company as reflected in any of the financial statements
contained in the Prospectus or (iii) if not continued in the
future, might adversely affect the assets, business, operations or
prospects of the Company. The Company’s internal accounting
controls and procedures are sufficient to cause the Company to
comply with the Foreign Corrupt Practices Act of 1977, as
amended.
(y) Any certificate signed by any
duly authorized officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
(z) To the Company’s
knowledge, no employee, officer or director of the Company is
subject to any noncompetition agreement or non-solicitation
agreement with any employer or prior employer which could
materially affect his ability to be an employee, officer and/or
director of the Company.
(aa) The Company is not, and upon
the issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus under the caption “Use of Proceeds” will not
be, an “investment company” as defined in the
Investment Company Act of 1940.
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(bb) The Company does not own an
interest in any corporation, partnership, limited liability
company, joint venture, trust or other business entity.
(cc) There are no business
relationships or related party transactions involving the Company
or any other person required to be described in the Prospectus that
have not been described as required by the Act and the
Rules.
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3.
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Covenants of
the Company . The Company
covenants and agrees as follows:
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(a) The Company will use its
commercially reasonable efforts to cause the Registration
Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as
promptly as possible. The Company will prepare the Prospectus, in a
form reasonably acceptable to the Representatives, and effect the
filings necessary pursuant to Rule 424(b) under the Act no later
than the Commission’s close of business on the second
business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required
by the Rules.
(b) The Company shall promptly
notify the Representatives in writing (i) when any
post-effective amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or
for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any Preliminary Prospectus or the initiation or threatening
of any proceeding for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and
(v) of the happening of any event during the period described
in Section 3(c) that, in the judgment of the Company, makes
any statement of a material fact made in the Registration Statement
or the Prospectus untrue or that requires the making of any changes
in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus or any document incorporated by r
