Roth Capital
Partners, LLC
24 Corporate Plaza
Newport Beach, CA 92660
IMAX Corporation,
a corporation incorporated under the federal laws of Canada (the
“ Company ”) proposes, subject to the terms and
conditions stated herein, to issue and sell to Roth Capital
Partners, LLC (the “ Underwriter ”) an aggregate
of 9,800,000 authorized but unissued common shares (the “
Underwritten Shares ”), no par value (the “
Common Shares ”), of the Company and to grant the
Underwriter the option to purchase an aggregate of up to 1,470,000
additional Common Shares (the “ Additional Shares
”) as may be necessary to cover over-allotments made in
connection with the offering of the Underwritten Shares. The
Underwritten Shares and Additional Shares are collectively referred
to as the “ Shares .”
The Company and
the Underwriter hereby confirm their agreement as
follows:
1.
Registration Statement and
Prospectus . The Company has
prepared and filed with the Securities and Exchange Commission (the
“ Commission ”) a registration statement on Form
S-3 (File No. 333-157300) under the Securities Act of 1933, as
amended (the “ Securities Act ”) and the rules
and regulations (the “ Rules and Regulations ”)
of the Commission thereunder, and such amendments to such
registration statement (including post effective amendments) as may
have been required to the date of this Agreement. Such registration
statement, as amended (including any post effective amendments) has
been declared effective by the Commission. Such registration
statement, at any given time, including amendments thereto
(including post effective amendments thereto) at such time, the
exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act at such time and the documents and
information otherwise deemed to be a part thereof or included
therein by Rule 430B under the Securities Act or otherwise
pursuant to the Rules and Regulations at such time, is herein
called the “ Registration Statement .” If the
Company has filed or files an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the “
Rule 462 Registration Statement ”), then any
reference herein to the term Registration Statement shall include
such Rule 462 Registration Statement.
1
The Company is
filing with the Commission pursuant to Rule 424 under the
Securities Act a final prospectus supplement relating to the Shares
to a form of prospectus included in the Registration Statement in
the form heretofore delivered to the Underwriter. Such prospectus
in the form in which it appears in the Registration Statement is
hereinafter called the “ Base Prospectus .” Such
supplemental form of prospectus, and any preliminary prospectus
supplement or “red herring,” in the form in which they
shall be filed with the Commission pursuant to Rule 424(b) under
the Securities Act (including the Base Prospectus as so
supplemented) is hereinafter called the “ Prospectus
.” Any reference herein to the Base Prospectus or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act as of the date of such prospectus.
For purposes of
this Agreement, all references to the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“ EDGAR ”). All references in this
Agreement to financial statements and schedules and other
information which is “described,”
“contained,” “included” or
“stated” in the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, or the
Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and
other information which is incorporated by reference in or
otherwise deemed by the Rules and Regulations to be a part of or
included in the Registration Statement, the Rule 462
Registration Statement, the Base Prospectus or the Prospectus, as
the case may be; and all references in this Agreement to amendments
or supplements to the Registration Statement, the Rule 462
Registration Statement, the Base Prospectus or the Prospectus shall
be deemed to mean and include the subsequent filing of any document
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), which is deemed to be incorporated
therein by reference therein or otherwise deemed by the Rules and
Regulations to be a part thereof.
2.
Representations and Warranties
Regarding the Offering.
(a) The
Company represents and warrants to, and agrees with, the
Underwriter, as of the date hereof and as of the Closing Date (as
defined in Section 4(c) below), except as otherwise indicated, as
follows:
(i) At
each time of effectiveness, at the date hereof and at the Closing
Date, the Registration Statement and any post-effective amendment
thereto complied or will comply in all material respects with the
requirements of the Securities Act and the Rules and Regulations
and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Prospectus, as amended or supplemented, at the time of filing
pursuant to Rule 424(b) under the Securities Act and at the Closing
Date did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the
2
circumstances
under which they were made, not misleading. The representations and
warranties set forth in the two immediately preceding sentences
shall not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto or any Prospectus
in reliance upon, and in conformity with, written information
furnished to the Company by the Underwriter specifically for use in
the preparation thereof. No order preventing or suspending the
effectiveness or use of the Registration Statement or any
Prospectus is in effect and no proceedings for such purpose have
been instituted or are pending, or, to the knowledge of the
Company, are contemplated or threatened by the
Commission.
(ii) The
documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable. Any further
documents so filed and incorporated by reference in the Prospectus,
or further amendment or supplement thereto, when such documents are
filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act.
(iii) (A) Neither
(x) the Time of Sale Disclosure Package, nor (y) any
individual Issuer Limited-Use Free Writing Prospectus, when
considered together with the Time of Sale Disclosure Package,
included as of the Time of Sale any untrue statement of a material
fact or omitted as of the Time of Sale to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any Statutory Prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use therein. As used in this paragraph
and elsewhere in this Agreement:
(1) “ Time of Sale
” means 7:00 am (New York City time) on the date of this
Agreement.
(2) “
Time of Sale Disclosure Package ” means any Issuer
General Free Writing Prospectus(es) issued at or prior to the Time
of Sale, the Statutory Prospectus and the transaction information
set forth in Schedule I to this Agreement, if
any.
(3) “
Statutory Prospectus ” as of any time means the
Prospectus that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary prospectus supplement
deemed to be a part thereof. For purposes of this definition,
information contained in a form of prospectus that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430B under the Securities Act shall be considered to
be included in the Statutory Prospectus as of the actual time that
form of prospectus is filed with the Commission pursuant to Rule
424(b) under the Securities Act.
3
(4) “
Issuer Free Writing Prospectus ” means any
“issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act, relating to the Shares that
(A) is required to be filed with the Commission by the
Company, or (B) is exempt from filing pursuant to
Rule 433(d)(5)(i) or (d)(8) under the Securities Act, in each
case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the
Securities Act.
(5) “
Issuer General Free Writing Prospectus ” means any
Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being
specified in Schedule I to this Agreement.
(6) “
Issuer Limited-Use Free Writing Prospectus ” means any
Issuer Free Writing Prospectus that is not an Issuer General Free
Writing Prospectus.
(B) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the Prospectus Delivery Period or until
any earlier date that the Company notified or notifies the
Underwriter as described in Section 5(a)(iii) below, did not,
does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, any Statutory Prospectus or the Prospectus.
The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use therein.
(C) At
the time of filing of the Registration Statement and at the date
hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405 under the Securities Act
or an “excluded issuer” as defined in Rule 164
under the Securities Act.
(D) Each
Issuer Free Writing Prospectus satisfied, as of its issue date and
at all subsequent times through the Prospectus Delivery Period, all
other conditions as may be applicable to its use as set forth in
Rules 164 and 433 under the Securities Act.
(E) The
Company has not distributed and will not distribute any free
writing or other prospectus or other offering material in
connection with the offering and sale of the Shares other than the
Time of Sale Disclosure Package or the information set forth on
Schedule I.
(iv) The
Company was at the time of filing the Registration Statement, and
at the date hereof, remains eligible to use Form S-3 under the
Securities Act. In addition, at the time of filing of the
Registration Statement and as of the date hereof, the Company had
(A) a non-affiliate public float of (1) $150 million, or
(2) $100 million and an annual trading volume of at least
3 million shares, (B) filed all the material required to
be filed by the Company pursuant to the Exchange Act for a period
of at least 36 calendar months, and (C) filed in a timely manner
all reports required to be filed during the past 12
4
calendar
months, and, in the case of (B) and (C), any portion of a
month immediately preceding such dates. For purposes of this
subsection (iv), “non-affiliate public float” shall
mean the number of shares held by non-affiliates of the Company
multiplied by the price at which the Common Shares were last sold
before the filing of the Registration Statement or the Closing
Date, as applicable, and “annual trading volume” shall
mean the volume of Company stock traded in any continuous
12 month period ended within 60 days prior to the filing
of the Registration Statement or the Closing Date, as
applicable.
(v) The
financial statements of the Company, together with the related
notes, included or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus
comply in all material respects with the requirements of the
Securities Act and the Exchange Act and fairly present the
financial condition of the Company as of the dates indicated and
the results of operations and changes in cash flows for the periods
therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved;
and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. No
other financial statements or schedules are required to be included
in the Registration Statement, the Time of Sale Disclosure Package
or the Prospectus. To the Company’s knowledge,
PricewaterhouseCoopers LLP, which has expressed its opinion with
respect to the financial statements and schedules filed as a part
of the Registration Statement and included in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus,
is an independent public accounting firm within the meaning of the
Securities Act and the Rules and Regulations.
(vi) All
statistical or market-related data included or incorporated by
reference in the Registration Statement, the Time of Sale
Disclosure Package or the Prospectus are based on or derived from
sources that the Company reasonably believes to be reliable and
accurate.
(vii) There
is no action pending to delist the Common Shares from the Nasdaq
Global Market or any other trading market on which the Common
Shares are or have been listed or quoted, nor has the Company
received any notification that the Nasdaq Global Market or any
other such trading market is currently contemplating terminating
such listing. When issued, the Shares will be listed on the Nasdaq
Global Market.
(viii) The
Company has not taken, directly or indirectly, any action that is
designed to or that has constituted or that would 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.
(ix) The
Company is not and, after giving effect to the offering and sale of
the Shares, will not be an “investment company,” as
such term is defined in the Investment Company Act of 1940, as
amended.
5
(b) Any
certificate signed by any officer of the Company and delivered to
the Underwriter or to the Underwriter’s Counsel shall be
deemed a representation and warranty by the Company to the
Underwriter as to the matters covered thereby.
3.
Representations and Warranties
Regarding the Company.
(a) The
Company represents and warrants to and agrees with, the
Underwriter, except as set forth in the Registration Statement, the
Time of Sale Disclosure Package and the Prospectus, as
follows:
(i) The
Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, with all
requisite power and authority to carry on its business as now
conducted and as described in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus. Except as is not
reasonably likely to result in a material adverse effect upon the
business, prospects, properties, operations, condition (financial
or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, or in its ability to perform its
obligations under this Agreement (“ Material Adverse
Effect ”), each of the subsidiaries of the Company is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, with all requisite
power and authority to carry on its business as now conducted and
as described in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus. The Company and each of its
subsidiaries is duly qualified to do business and is in good
standing in each jurisdiction in which it conducts business except
where the failure so to qualify is not reasonably likely to result
in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries is in violation of its certificate of incorporation,
by-laws or other equivalent organizational or governing documents,
except where the violation, in the case of a subsidiary of the
Company, is not reasonably likely to have a Material Adverse
Effect.
(ii) This
Agreement has been duly executed and delivered by the Company. This
Agreement constitutes the valid and legally binding obligation of
the Company, enforceable against it in accordance with its terms,
subject to (A) applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or other similar laws of
general application relating to or affecting the enforcement of
creditors’ rights generally, (B) general principles of
equity and (C) with respect to the enforcement of any rights
to indemnity and contribution, securities laws and principles of
public policy.
(iii) The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not
(A) conflict with, or result in any violation of any
provisions of the Company’s charter, bylaws or any other
organizational or charter document, (B) conflict with, result
in any violation or breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, lease, credit facility, debt, note,
bond, mortgage, indenture or other instrument or obligation
(evidencing a Company or subsidiary debt or otherwise) or other
understanding to which
6
the Company or
any subsidiary is a party or by which any property or asset of the
Company or any subsidiary is bound, or affected, except to the
extent that such conflict, default, termination, amendment,
acceleration or cancellation right is not reasonably likely to
result in a Material Adverse Effect, or (C) result in a
violation of any applicable law to which the Company or a
subsidiary is subject, or by which any property or asset of the
Company or a subsidiary is bound or affected.
(iv) The
Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement and to issue
and sell the Shares to the Underwriter in accordance with the terms
hereof. All consents, approvals, orders and authorizations required
on the part of the Company or its subsidiaries in connection with
the execution, delivery or performance of this Agreement have been
obtained or made, other than such consents, approvals, orders and
authorizations the failure of which to make or obtain is not
reasonably likely to result in a Material Adverse
Effect.
(v) All
of the issued and outstanding shares of capital stock of the
Company are duly authorized and validly issued, fully paid and
nonassessable, have been or will be issued in compliance with all
applicable securities laws, and conform to the description thereof
in the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus. Except for the issuances of options or
restricted stock in the ordinary course of business, since the
respective dates as of which information is provided in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, the Company has not entered into or granted any
convertible or exchangeable securities, or options, warrants,
agreements, contracts or other rights to purchase or acquire from
the Company any shares of the capital stock of the Company. The
Shares, when issued, will be duly authorized and validly issued,
fully paid and nonassessable, will be issued in compliance with all
applicable securities laws, and will be free of preemptive,
registration or similar rights.
(vi) The
Company and its subsidiaries have timely filed all tax returns
required to be filed, which returns are true and correct in all
material respects, and the Company and its subsidiaries have paid
all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines
or penalties currently being contested in good faith and as is not
reasonably likely to result in a Material Adverse
Effect.
(vii) Since
the respective dates as of which information is given in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, (a) neither the Company nor any of its
subsidiaries has entered into any transactions other than those in
the ordinary course of business with respect to the Company and its
subsidiaries considered as one enterprise, (b) the Company has
not declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; (c) there has not been
any change in the capital stock of the Company or any of its
subsidiaries (other than a change in the number of outstanding
Common Shares due to the issuance of shares upon the exercise of
outstanding options or warrants or the issuance of restricted stock
awards or restricted stock units under the Company’s existing
stock awards plan or
7
any new grants
other than in the ordinary course of business), (d) there has
not been any material increase in the Company’s indebtedness,
or (e) there has not been the occurrence of any Material
Adverse Effect.
(viii) (A) there
is no private or governmental action, suit, proceeding, claim,
arbitration or investigation pending before any agency, court or
tribunal, foreign or domestic, or, to the knowledge of the Company
or any of its subsidiaries, threatened against the Company or any
of its properties or any of its officers or directors (in their
capacities as such), which is reasonably likely to result in a
Material Adverse Effect, and (B) there is no judgment, decree
or order against the Company, or, to the knowledge of the Company,
any of its respective directors or officers (in their capacities as
such) relating to the business of the Company, the presence of
which is reasonably likely to result in a Material Adverse Effect.
To the Company’s knowledge, no circumstances exist that could
form a valid basis for a claim against the Company as a result of
the conduct of the Company’s business that is reasonably
likely to result in a Material Adverse Effect.
(ix) Each
of the Company and its subsidiaries has, and is in compliance with,
all franchises, licenses, certificates and other authorizations
(“ Permits ”) from any government or
governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its
subsidiaries as currently conducted, except where the failure to
possess or comply with any such Permits is not reasonably likely to
result in a Material Adverse Effect.
(x) The
Company and its subsidiaries have good and marketable title to all
property (whether real or personal) described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus
as being owned by them that are material to the business of the
Company, in each case free and clear of all liens, claims, security
interests, other encumbrances or defects, except those that are not
reasonably likely to result in a Material Adverse Effect. The
property held under lease by the Company and its subsidiaries is
held by them under valid, subsisting and enforceable leases with
only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business
of the Company or its subsidiaries.
(xi) Each
of the Company and its subsidiaries owns or possesses sufficient
rights to use all patents, patent rights, trademarks, copyrights,
licenses, inventions, trade secrets, trade names and know-how
(collectively, “ Intellectual Property ”) that
are necessary for the conduct of its business as now conducted
except where the failure to currently own or possess them is not
reasonably likely to result in a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has received any notice of,
or has any knowledge of, any infringement of asserted rights of a
third party with respect to any Intellectual Property that is
reasonably likely to result in a Material Adverse Effect and
neither the Company nor any of its subsidiaries has received any
notice of any infringement rights by a third party with respect to
any Intellectual Property that is reasonably likely to result in a
Material Adverse Effect.
(xii) The
Company and each of its subsidiaries has complied with, is not in
violation of, and has not received any notice of violation relating
to, any statute, law or
8
regulation with
respect to the conduct of its business, or the ownership or
operation of its property and assets, including, without
limitation, (A) the Currency and Foreign Transactions
Reporting Act of 1970, as amended, or any money laundering laws,
rules or regulations, (B) any laws, rules or regulations
related to health, safety or the environment, including those
relating to the regulation of hazardous substances (C) the
Sarbanes-Oxley Act and the rules and regulations of the Commission
thereunder that are effective with respect to the Company and its
subsidiaries on the date of this Agreement, (D) the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder, and (E) the Employment Retirement
Income Security Act of 1974, as amended and the rules and
regulations thereunder, in each case except where the failure to be
in compliance is not reasonably likely to result in a Material
Adverse Effect.
(xiii) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, employee, representative, agent
or affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); and the Company will not directly or indirectly use the
proceeds of the offering of the Shares contemplated hereby, or
lend, contribute or otherwise make available such proceeds to any
person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(xiv) The
Company carries, or is covered by, insurance in such amounts and
covering such risks as the Company reasonably deems adequate for
the conduct of its business and the value of its properties and as
is customary for companies engaged in similar businesses in similar
industries.
(xv) No
labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent that has resulted in or is reasonably likely to result in
a Material Adverse Effect.
(xvi) Other
than as contemplated by this Agreement or as disclosed to the
Underwriter in writing, the Company has not incurred any liability
for any finder’s or broker’s fee or agent’s
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby.
4.
Purchase, Sale and Delivery of
Shares.
(a) On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell the Underwritten Shares
to the Underwriter, and the Underwriter agrees to purchase the
Underwritten Shares from the Company. The purchase price for each
of the Underwritten Shares shall be $6.7925 per share (the “
Per Share Price ”). The Company agrees to pay to the
Underwriter the compensation as set forth in
Schedule II hereto.
(b) The
Company hereby grants to the Underwriter the option to purchase
some or all of the Additional Shares and, upon the basis of the
warranties and representations and subject to the terms and
conditions herein set forth, the Underwriter shall have the right
to
9
purchase from
the Company all or a portion of the Additional Shares at the Per
Share Price as may be necessary to cover over-allotments made in
connection with the offering of the Underwritten Shares. This
option may be exercised by the Underwriter at any time (but not
more than once) on or before the thirtieth day following the date
hereof, by written notice to the Company (the “ Option
Notice ”). The Option Notice shall set forth the
aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares
are to be delivered (such date and time being herein referred to as
the “ Option Closing Date ”); provided ,
however , that the Option Closing Date shall not be earlier
than the Closing Date (as defined below) nor earlier than the
second business day after the date on which the option shall have
been exercised nor later than the fifth business day after the date
on which the option shall have been exercised unless the Company
and the Underwriter otherwise agree.
Payment of the
purchase price for and delivery of the Additional Shares shall be
made at the Option Closing Date in the same manner and at the same
office as the payment for the Underwritten Shares as set forth in
subparagraph (c) below. For the purpose of expediting the
checking of the certificate for the Additional Shares by you, the
Company agrees to make a form of such certificate available to you
for such purpose at least one full business day preceding the
Option Closing Date.
(c) The
Underwritten Shares will be delivered by the Company to the
Underwriter against payment of the purchase price therefor by wire
transfer of same day funds payable to the order of the Company, as
appropriate, at the offices of Roth Capital Partners, LLC, 24
Corporate Plaza, Newport Beach, CA 92660, or such other location as
may be mutually acceptable, at 9:00 a.m. New York City time, on the
third (or if the Underwritten Shares are priced, as contemplated by
Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or
at such other time and date as the Underwriter and the Company
determine pursuant to Rule 15c6-1(a) under the Exchange Act,
or, in the case of the Additional Shares, at such date and time set
forth in the Option Notice. The time and date of delivery of the
Underwritten Shares or the Additional Shares, as applicable, is
referred to herein as the “ Closing Date .” If
the Underwriter so elects, delivery of the Underwritten Shares may
be made by credit through full fast transfer to the account at The
Depository Trust Company designated by the Underwriter.
Certificates representing the Underwritten Shares, in definitive
form and in such denominations and registered in such names as the
Underwriter may request upon at least two business days’
prior notice to the Company, will be made available for checking
and packaging not later than 10:30 a.m. PST on the business
day next preceding the Closing Date at the above addresses, or such
other location as may be mutually acceptable.
(a) The
Company covenants and agrees with the Underwriter as
follows:
(i) During
the period beginning on the date hereof and ending on the
completion of the distribution of the Shares as contemplated in
this Agreement and in the Prospectus (the “ Prospectus
Delivery Period ”), prior to amending or supplementing
the Registration Statement, including any Rule 462
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, the Company shall furnish to the Underwriter
for
10
review a copy
of each such proposed amendment or supplement, and the Company
shall not file any such proposed amendment or supplement to which
the Underwriter reasonably objects.
(ii) After
the date of this Agreement, the Company shall promptly advise the
Underwriter in writing (A) of the receipt of any comments of,
or requests for additional or supplemental information from, the
Commission, (B) of the time and date of any filing of any
post-effective amendment to the Registration Statement or any
amendment or supplement to the Time of Sale Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus, (C) of the time
and date that any post-effective amendment to the Registration
Statement becomes effective and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending its
use or the use of the Time of Sale Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus, or of any
proceedings to remove, suspend or terminate from listing or
quotation the Common Shares from any securities exchange upon which
it is listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at
any time, the Company will use its reasonable efforts to obtain the
lifting of such order at the earliest possible moment.
Additionally, the Company agrees that it shall comply with the
provisions of Rules 424(b), 430A and 430B, as applicable,
under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under Rule 424(b) or
Rule 433 were received in a timely manner by the Commission
(without reliance on Rule 424(b)(8)).
(iii) (A) During
the Prospectus Delivery Period, the Company will comply with all
requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from time
to time in force, and by the Exchange Act, as now and hereafter
amended, so far as necessary to permit the continuance of sales of
or dealings in the Shares as contemplated by the provisions hereof,
the Time of Sale Disclosure Package, the Registration Statement and
the Prospectus. If during such period any event occurs as a result
of which the Prospectus (or if the Prospectus is not yet available
to prospective purchasers, the Time of Sale Disclosure Package )
would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or if
during such period it is necessary or appropriate in the opinion of
the Company or its counsel or the Underwriter or its counsel to
amend the Registration Statement or supplement the Prospectus (or
if the Prospectus is not yet available to prospective purchasers,
the Time of Sale Disclosure Package ) to comply with the Securities
Act or to file under the Exchange Act any document that would be
deemed to be incorporated by reference in the Prospectus in order
to comply with the Securities Act or the Exchange Act, the Company
will promptly notify the Underwriter and will amend the
Registration Statement or supplement the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the Time
of Sale Disclosure Package) or file such document (at the expense
of the Company) so as to correct such statement or omission or
effect such compliance.
11
(B) If
at any time following the issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration
Statement, the Statutory Prospectus or the Prospectus or included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company has
promptly notified or promptly will notify the Underwriter and has
promptly amended or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(iv) The
Company shall use reasonable efforts to qualify the Shares for sale
under the securities laws of such jurisdictions as the Underwriter
reasonably designates and to continue such qualifications in effect
so long as required for the distribution of the Shares, except that
the Company shall not be required in connection therewith to
qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified, to execute a
general consent to service of process in any state or to subject
itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise subject.
(v) The
Company will furnish to the Underwriter and counsel for the
Underwriter copies of the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus, and all amendments and
supplements to such documents, in each case as soon as available
and in such quantities as the Underwriter may from time to time
reasonably request.
(vi) The
Company will make generally available to its security holders as
soon as practicable, but i
|
