Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows: (a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request. (b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. (c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. (d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule. (e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request. (f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request. (g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. (i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject. (j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. (k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available. (l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 5 contracts
Samples: Terms Agreement (Vale S.A.), Underwriting Agreement (Vale Capital LTD), Terms Agreement (Companhia Vale Do Rio Doce)
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 4 contracts
Samples: Underwriting Agreement (Vale Overseas LTD), Underwriting Agreement, Underwriting Agreement (Vale Overseas LTD)
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX EXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 2 contracts
Samples: Underwriting Agreement (Vale Overseas LTD), Underwriting Agreement (Vale Overseas LTD)
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor hereby agrees with each Underwriter the Initial Purchasers as follows:
(a) Immediately following To advise the execution Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing, (i) of the Terms Agreementissuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the Company initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of the Guarantor will prepare happening of any event during the period referred to in Section 5(c) below that makes any statement of a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified material fact made in the Base Prospectus Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires any Preliminary Prospectus, the names of the Underwriters participating additions to or changes in the offering and Preliminary Offering Memorandum or the principal amount of Securities which each severally has agreed Offering Memorandum in order to purchase, make the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securitiesstatements therein not misleading. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable best efforts to prevent the issuance of any such stop order or notice of objection order suspending the qualification or the suspension exemption of any such qualification Series A Notes under any state securities or Blue Sky laws and, if issued, to obtain as soon as possible at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) qualification or exemption of any Series A Notes under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreementany state securities or Blue Sky laws, the Company and the Guarantor will prepare a final term sheet, containing solely a description shall use their best efforts to obtain the withdrawal or lifting of final terms such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Securities Preliminary Offering Memorandum and the offering thereofOffering Memorandum, substantially and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in the form Section 5(c). Subject to each Initial Purchaser's compliance with its representations and warranties and agreements set forth in Exhibit B hereto and in Section 7 hereof, the form approved by you and attached as Schedule III Company consents to the Terms Agreement use of the Preliminary Offering Memorandum and will file such term sheet the Offering Memorandum, and any amendments and supplements thereto required pursuant to Rule 433(d) under hereto, by the Act within the time required by such RuleInitial Purchasers in connection with Exempt Resales.
(ec) During such period as in the opinion of counsel for the Initial Purchasers an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchasers and in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum which may be necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to the filing of the Final Prospectus pursuant to Rule 424(b)in Section 5(c) above, any event occurs shall occur or condition shall exist as a result of which which, in the Disclosure Package would include any untrue statement opinion of a material fact counsel to the Initial Purchaser, it becomes necessary to amend or omit to state any material fact necessary supplement the Offering Memorandum in order to make the statements therein therein, in the light of the circumstances under which they were made or the circumstances then prevailing when such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if, in the Company and opinion of counsel to the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until Initial Purchasers, it is amended or supplemented; (ii) necessary to amend or supplement the Disclosure Package Offering Memorandum to correct such statement or omission; and (iii) supply comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to you such Offering Memorandum so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that such quantities Offering Memorandum will comply with applicable law, and to furnish to the Initial Purchasers and such other persons as you the Initial Purchasers may designate such number of copies thereof as the Initial Purchasers may reasonably request.
(fe) If, at any time when a prospectus relating Prior to the Securities is required sale of all Series A Notes pursuant to be delivered under the ActExempt Resales as contemplated hereby, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply cooperate with the Act or Initial Purchasers and counsel to the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file Initial Purchasers in connection with the Commission an amendment registration or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities Series A Notes for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as you the Initial Purchasers may designate request and will maintain to continue such qualifications registration or qualification in effect so long as required for the distribution Exempt Resales and to file such consents to service of the Securitiesprocess or other documents as may be necessary in order to effect such registration or qualification; provided PROVIDED, HOWEVER, that in no event shall either neither the Company or nor the Guarantor shall be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action that would subject either of them it to general consent to service of process in suits, or taxation other than those arising out of as to matters and transactions relating to the offering Preliminary Offering Memorandum, the Offering Memorandum or sale of the SecuritiesExempt Resales, in any jurisdiction where either of them in which it is not now so subject.
(jf) Each of During the period as and to the extent the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treatGuarantor, as the case may be, may be required by applicable law or by the rules of any exchange or securities association upon which any of the Company's or the Guarantor's securities are listed or quoted, to mail to the record holders of the Securities (i) within 90 days after the end of each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will complyfiscal year of the Company or the Guarantor, as the case may be, a financial report of the Company or the Guarantor, as the case may be, and its subsidiaries on a consolidated basis, and a similar financial report of all unconsolidated subsidiaries, if any, all such financial reports to include a consolidated balance sheet as at the end of the preceding fiscal year, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity covering such fiscal year, together with comparable information as of the requirements end of Rules 164 and 433 under for the Act applicable preceding fiscal year, and all to any Permitted Free Writing Prospectusbe in reasonable detail and examined and reported on by independent certified public accountants for the Company or the Guarantor, including as the case may be, and (ii) within 45 days after the end of each quarterly fiscal period of the Company or the Guarantor, as the case may be, (except for the last quarterly period of each fiscal year) copies of the consolidated statement of operations and statement of cash flows for that period, and the consolidated balance sheet as of the end of that period, of the Company or the Guarantor, as the case may be, and its subsidiaries, and the income statement, statement of changes in respect financial condition and balance sheet of timely filing each unconsolidated subsidiary, if any, of the Company or the Guarantor, as the case may be, as at the end of and for that period, together with comparable information as at the Commission, legending end of and record keepingfor the same quarterly fiscal period of the preceding fiscal year.
(kg) The Company and During the Guarantor will furnishperiods referred to in paragraph (f), upon request to furnish to you as soon as available a copy of an Underwriter, for a period of two years from the date each report of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s Company or the Guarantor’s website) (i) copies of any reports , as the case may be, or other communications which the Guarantor shall send to its shareholders or publicly available information which the Company or the Guarantor Guarantor, as the case may be, shall from time mail or otherwise make available to time publish the security holders of the Company or publicly disseminate; (ii) copies of all annual and other reports filed the Guarantor, as the case may be, or shall file with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of publicly available information concerning the Company is listed, in each caseor the Guarantor, as soon the case may be, and its subsidiaries as such reports, communications or documents become availableyou may reasonably request.
(lh) The So long as any of the Series A Notes remain outstanding and during any period in which the Company and the Guarantor will apply the net proceeds from the sale are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or
(v) the cost of printing certificates representing the Series A Notes and the Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes in the manner National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth under the caption “Use of Proceeds” in the Prospectus SupplementRegistration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood that, except as set forth herein, the Initial Purchasers shall pay their own expenses in connection with the Initial Purchase and Exempt Resales of the Series A Notes.
Appears in 2 contracts
Samples: Purchase Agreement (Musicland Group Inc /De), Purchase Agreement (Musicland Stores Corp)
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor covenants and agrees with each Underwriter the Initial Purchasers as follows:
(a) Immediately following To advise the execution Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing (i) of the Terms Agreementissuance by any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any Notes or the Guarantees thereof for offering or sale in any jurisdiction, or the Company initiation of any proceeding for such purpose by any state securities commission or other regulatory authority and (ii) of the Guarantor will prepare happening of any event that makes any statement of a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified material fact made in the Base Prospectus Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires the making of any additions to or changes in the Preliminary ProspectusOffering Memorandum or the Offering Memorandum in order to make the statements therein, in the names light of the Underwriters participating in the offering and the principal amount of Securities circumstances under which each severally has agreed to purchasethey are made, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securitiesnot misleading. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their respective commercially reasonable efforts to prevent the issuance of any such stop order or notice order suspending the qualification or exemption from qualification of objection any Notes or the suspension of Guarantees thereof under any such qualification state securities or Blue Sky laws and, if issued, to obtain as soon as possible at any time any state securities commission or other regulatory authority shall issue an order suspending the withdrawal thereof.
(c) The Company shall pay qualification or exemption from qualification of any Notes or the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) Guarantees thereof under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreementany state securities or Blue Sky laws, the Company and the Guarantor will prepare a final term sheet, containing solely a description shall use their respective commercially reasonable efforts to obtain the withdrawal or lifting of final terms of such order at the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Ruleearliest possible time.
(eb) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Guarantor consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum during such period as in the reasonable opinion of counsel for the Initial Purchasers the Preliminary Offering Memorandum or the Offering Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchasers for so long as any Initial Notes are outstanding unless the Initial Purchasers previously have been advised thereof and have not objected thereto within a reasonable time after being furnished a copy thereof. The Company and the Guarantor shall promptly prepare, upon the Initial Purchasers’ request, any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that in the reasonable opinion of the Initial Purchasers or counsel for the Initial Purchasers may be necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to the filing of the Final Prospectus pursuant to Rule 424(b)in 4(c) above, any event occurs as a result of which which, in the Disclosure Package would include any untrue statement judgment of a material fact the Company and the Guarantor or omit in the reasonable opinion of counsel for the Company and the Guarantor or counsel for the Initial Purchasers, it becomes necessary or advisable to state any material fact necessary amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein therein, in the light of the circumstances under which they were made when such Preliminary Offering Memorandum or the circumstances then prevailing Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if in the Company and the Guarantor promptly will (i) notify you so that any use reasonable opinion of the Disclosure Package may cease until Initial Purchasers or counsel for the Initial Purchasers it is amended necessary or supplemented; (ii) advisable to amend or supplement the Disclosure Package Preliminary Offering Memorandum or the Offering Memorandum to correct such statement or omission; comply with applicable law, (i) to notify the Initial Purchasers and (iiiii) supply any forthwith to prepare an appropriate amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to Preliminary Offering Memorandum or the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the circumstances under which they were made at such time not when it is so delivered, be misleading, or if it shall be necessary to amend so that such Preliminary Offering Memorandum or the Registration Statement or supplement the Final Prospectus to Offering Memorandum will comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably requestapplicable law.
(ge) As soon as practicable, To cooperate with the Guarantor will make generally available to its security holders Initial Purchasers and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed Initial Purchasers in connection with the qualification or conformed copies registration of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company Initial Notes and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale Guarantees thereof under the securities or Blue Sky laws of such jurisdictions as you the Initial Purchasers may designate reasonably request and will maintain to continue such qualifications qualification in effect so long as required for the distribution of the SecuritiesExempt Resales; provided provided, however, that in no event shall either neither the Company nor any Guarantor shall be required in connection therewith to register or the Guarantor be obligated to qualify to do business in any jurisdiction as a foreign corporation or a foreign limited liability company where it is not now so qualified or to take any action that would subject either of them it to service of process in suitssuits or taxation, in each case, other than those arising out of as to matters and transactions relating to the offering Preliminary Offering Memorandum, the Offering Memorandum or sale of the SecuritiesExempt Resales, in any jurisdiction where either of them it is not now so subject.
(jf) Each Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Guarantor agrees thathereunder, unless it has or shall have obtained including in connection with: (i) the prior written consent preparation, printing, filing and distribution of the RepresentativesPreliminary Offering Memorandum and the Offering Memorandum (including, it has not made without limitation, financial statements) and will not make any offer relating all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all agreements, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery of the Initial Notes and the Guarantees thereof to the Securities that would constitute Initial Purchasers, (iv) the qualification or registration of the Notes and the Guarantees thereof for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky memorandum and the reasonable fees and disbursements of counsel for the Initial Purchasers relating thereto in an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required amount not to exceed $7,000), (v) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be filed requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and accountants, (viii) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantor in connection with the approval of the Notes by DTC for “book-entry” transfer, (ix) the rating of the Notes by rating agencies, (x) the reasonable fees and expenses of the Trustee and its counsel, (xi) the performance by the Company and the Guarantor of their other obligations under this Agreement and the other Operative Documents and (xii) 50% of the cost of aircraft charter relating to “roadshow” travel, and other “roadshow” travel and related expenses reasonably incurred in connection with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared marketing and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect sale of the Free Writing Prospectuses included Notes. Except as provided in Schedule II to this Section 4(f), the Terms Agreement. Any such Free Writing Prospectus consented to by Initial Purchasers shall pay their own expenses, including the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each fees and disbursements of their counsel and 50% of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements cost of Rules 164 and 433 under the Act applicable aircraft charter relating to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping“roadshow” travel.
(kg) The Company and To use the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities Initial Notes in the manner set forth described in the Offering Memorandum under the caption “Use of Proceeds” and to provide the Initial Purchasers with evidence of any application of such proceeds on the date of each such application.
(h) To use its reasonably commercial efforts to consummate the Acquisition, on substantially the same terms described in the Prospectus SupplementOffering Memorandum.
(i) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Initial Notes in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Initial Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(k) For so long as any of the Notes remain outstanding and during any period in which the Company and the Guarantor are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to make available to any holder or beneficial owner of Initial Notes in connection with any sale thereof and any prospective
Appears in 2 contracts
Samples: Purchase Agreement (Innophos Investment Holdings, Inc.), Purchase Agreement (Innophos, Inc.)
Agreements of the Company and the Guarantor. Each The Company and the Guarantor agree with the Initial Purchasers:
(a) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers within the period of time referred to in paragraph (d) below, to confirm such advice in writing, (i) of receipt of any notification with respect to the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (ii) of the happening of any event that makes any statement of a material fact made in the Offering Documents (or any amendment or supplement thereto) untrue or that requires the making of any additions to or changes in the Offering Documents (or any amendment or supplement thereto) in order to make the statements therein, in the light of the circumstances in which they are made, not misleading. The Company and the Guarantor shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of the Series A Notes under any state securities or Blue Sky laws, and, if at any time any state securities commission or other regulatory authority shall issue any stop order or order suspending the qualification or exemption from qualification of any of the Series A Notes under any state securities or Blue Sky laws, the Company and the Guarantor agrees with each Underwriter as follows:shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(ab) Immediately following Subject to paragraph (e) below, during the execution time period mentioned in paragraph (d) below, to furnish to the Initial Purchasers, without charge, as many copies of the Terms Offering Documents, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Guarantor consent to the use of the Offering Documents, and any amendments or supplements thereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Offering Memorandum, whether before or after the Closing Date, unless (i) the Initial Purchasers have been previously advised thereof, and (ii) the Initial Purchasers have not reasonably objected thereto within five business days of being furnished a copy thereof (unless in the opinion of counsel to the Company such amendment or supplement is required by law); and to prepare, promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum that the Initial Purchasers deem necessary or advisable in connection with Exempt Resales.
(d) Subject to paragraph (e) below, if, after the date hereof and prior to the completion of any Exempt Resale by the Initial Purchasers, in the opinion of counsel for the Initial Purchasers, any event shall occur as a result of which it becomes necessary to amend or supplement the Offering Memorandum to comply with any law or to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, the Company and the Guarantor agree to promptly (i) prepare an appropriate amendment or supplement to the Offering Memorandum and (ii) furnish the Initial Purchasers with such number of copies of the Offering Memorandum, as amended or supplemented, as the Initial Purchasers may reasonably request.
(e) Prior to the consummation of the Exchange Offer or the effectiveness of the Shelf Registration Statement if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates (as such term is defined in the rules and regulations under the Securities Act) are required to deliver an offering memorandum in connection with sales of, or market-making activities with respect to, the Notes, subject to the terms of the Registration Rights Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth agree (A) to periodically amend or supplement the principal amount of Securities covered thereby and their terms not otherwise specified Offering Memorandum so that the information contained in the Base Prospectus or any Preliminary Prospectus, Offering Memorandum complies with the names requirements of Rule 144A of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5B) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment amend or supplement thereto pursuant the Offering Memorandum when necessary to Rule 401(g)(2) under the Act, reflect any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified material changes in the Terms Agreement, information provided therein so that the Company and the Guarantor Offering Memorandum will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made existing as of the date the Offering Memorandum is so delivered, not misleading and (C) to provide the Initial Purchasers with such number of copies of each such amended or supplemented Offering Memorandum, as the Initial Purchasers may reasonably request. Following the consummation of the Exchange Offer or the circumstances then prevailing not misleadingeffectiveness of the Shelf Registration Statement and for so long as the Notes are outstanding if, in the reasonable judgment of the Initial Purchasers, the Company Initial Purchasers or any of their affiliates (as such term is defined in the rules and regulations under the Guarantor promptly will Securities Act) are required to deliver a prospectus in connection with sales of, or market-making activities with respect to, the Notes, (iA) notify you to periodically amend the applicable registration statement so that any use the information contained therein complies with the requirements of Section 10(a) of the Disclosure Package may cease until it is amended or supplemented; Securities Act, (iiB) to amend the applicable registration statement or supplement the Disclosure Package related prospectus or the documents incorporated therein when necessary to correct such reflect any material changes in the information provided therein so that the registration statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a the prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances existing as of the date the prospectus is so delivered, not misleading and (C) to provide the Initial Purchasers with such number of copies of each amendment or supplement filed and such other documents, including, as provided in the Registration Rights Agreement, opinions of counsel and "comfort" letters, as the Initial Purchasers may reasonably request. The Company and the Guarantor hereby expressly acknowledge that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(e).
(f) To cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification of the Series A Notes for offer and sale by the Initial Purchasers under which they were made at the state securities or Blue Sky laws of such time not misleadingjurisdictions as the Initial Purchasers may reasonably request, to continue such qualification in effect so long as reasonably required for Exempt Resales of the Series A Notes and to file such consents to service of process or if it shall other documents as may be necessary in order to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Acteffect such qualification; provided, however, that the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may shall not be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction as a foreign corporation where it is they are not now so qualified or to take any action that which would subject either of them to the service of process in suitssuits or to taxation, other than those arising out of as to matters and transactions relating to the offering or offer and sale of the SecuritiesNotes, in any jurisdiction where either of them is they are not now so subject.
(jg) Each So long as any of the Company and the Guarantor agrees thatNotes are outstanding, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to deliver to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be Initial Purchasers, promptly upon their becoming available, (i) copies of all current, regular and periodic reports filed by the Company and the Guarantor with any securities exchange or with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant any governmental authority succeeding to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect any of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives Commission's functions, and (ii) copies of each report or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each other publicly available information of the Company and the Guarantor agrees that mailed to the holders of Notes and such other publicly available information concerning the Company, the Guarantor and their direct and indirect subsidiaries (xeach, a "Subsidiary" and, ---------- collectively, the "Subsidiaries") it has treated and will treat, as the case Initial Purchasers may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingreasonably ------------ request.
(kh) The Company and To use the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities Series A Notes substantially in the manner set forth specified in the Offering Documents (and any amendments or supplements thereto) under the caption “"Use of Proceeds” ."
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with:
(1) the preparation, printing, filing and distribution under the Securities Act of the Offering Documents (including, without limitation, financial statements and exhibits) and all amendments and supplements to any of them;
(2) the printing and delivery of the Operative Documents, the preliminary and supplemental Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection herewith and with the Exempt Resales (including in each case any reasonable disbursements of counsel to the Initial Purchasers relating to such printing and delivery);
(3) the issuance and delivery by the Company of the Series A Notes to the Initial Purchasers;
(4) the registration or qualification of the Series A Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of counsel to the Initial Purchasers relating to such registration or qualification and memoranda relating thereto);
(5) furnishing such copies of the Offering Documents (including all documents incorporated by reference therein) and all amendments and supplements thereto as may be reasonably requested for use in connection with the Exempt Resales;
(6) the rating of the Notes by rating agencies, if any;
(8) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for "book-entry" transfer; and
(9) the performance by the Company and the Guarantor of their obligations under this Agreement (including, without limitation, the fees of the Trustee, the cost of its personnel and other internal costs, the cost of printing and engraving the certificates representing the Notes and all expenses and taxes incident to the sale and delivery of the Notes to the Initial Purchasers other than any transfer taxes on resales by the Initial Purchasers).
(j) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared by the Company and the Guarantor, a copy of any consolidated financial statements of the Company and the Guarantor for any period subsequent to the period covered by the financial statements appearing in the Prospectus SupplementOffering Documents.
(k) Not to distribute prior to the Closing Date any offering material in connection with the offering and sale of the Series A Notes other than the Offering Documents.
(l) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of Series A Notes.
(m) For so long as Notes remain outstanding or until all of the Notes may be sold pursuant to Rule 144(k) under the Securities Act, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available to any Eligible Purchaser or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such Eligible Purchaser or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act.
(n) To comply with their agreements in the Registration Rights Agreement, and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Series A Notes by DTC for "book-entry" transfer.
(o) To use their best efforts to effect the inclusion of the Series A Notes in PORTAL.
(p) To use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company and the Guarantor prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Series A Notes and the issuance of the Guarantee.
(q) Not to engage in any directed selling efforts with respect to the Notes within the meaning of Regulation S, and that the Company, the Guarantor and each person acting on their behalf has complied and will comply with the offering restrictions requirement of Regulation S.
(r) During the period beginning from the date hereof and continuing to and including the date that is 60 days after the Closing Date, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (other than the Series B Notes) that are substantially similar to the Series A Notes including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Series A Notes or any such substantially similar securities (other than pursuant to employee or director stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, in each case as described in the Offering Memorandum under the heading "Capitalization" or in the financial statements included therein), without the prior written consent of DLJ, on behalf of the Initial Purchasers.
(s) Not to cause any advertisement of the Series A Notes to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Series A Notes, without the prior approval of DLJ.
Appears in 1 contract
Samples: Purchase Agreement (Cellular Communications of Puerto Rico Inc)
Agreements of the Company and the Guarantor. Each of the The Company and the Guarantor agrees Guarantor, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will furnish to the Initial Purchasers, without charge, within one business day of the time periods specified by Rule 424(b) transmit date of the Offering Memorandum, such number of copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters Offering Memorandum as many copies of the Final Prospectus may then be amended or supplemented as you shall they may reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when prepare the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request Offering Memorandum in a form approved by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, Initial Purchasers and will not make any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension Pricing Disclosure Package or to the Offering Memorandum of which the qualification of the Securities for sale in any jurisdiction Initial Purchasers shall not previously have been advised or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereofwhich they shall reasonably object after being so advised.
(c) The Company shall pay and the required Commission filing fees relating Guarantor consent to the Securities within use of the time required by Rule 456(b)(1) under Pricing Disclosure Package and the Act without regard to the proviso therein and otherwise Offering Memorandum in accordance with Rules 456(b) the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and 457(r) under by all dealers to whom Notes may be sold, in connection with the Actoffering and sale of the Notes.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing completion of the Final Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Company or the Guarantor or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the circumstances then prevailing not misleadingOffering Memorandum in order to comply with any law, the Company and the Guarantor promptly will (i) notify you so that any use forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestcopies thereof.
(fe) IfNeither the Company nor the Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed. If at any time when following issuance of a prospectus relating to the Securities is required to be delivered under the Act, Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the Final Prospectus as then supplemented would include any information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made at such time then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or if it shall other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may 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 amend complete the Registration Statement distribution of the Notes; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or supplement (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(g) For a period commencing on the Final Prospectus to comply with date hereof and ending on the Act or 90th day after the Exchange Actdate of the Offering Memorandum, the Company and the Guarantor promptly will agree not to, directly or indirectly, (1i) notify you offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such eventdebt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or other securities, in cash or otherwise, (2iii) prepare file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into such debt securities of the Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of Barclays, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and file the Exchange Guarantees in connection with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the ActExchange Offer.
(h) Upon requestSo long as any of the Notes are outstanding, the Company and the Guarantor will furnish at their expense to the Representatives and Initial Purchasers, and, upon request, to counsel for the Underwriters, without charge, signed or conformed copies holders of the Registration Statement (including exhibits thereto) Notes and to each other Underwriter a copy prospective purchasers of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be Notes the information required by Rule 144A(d)(4) under the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably requestSecurities Act (if any).
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner set forth Pricing Disclosure Package and the Offering Memorandum under the caption “Use of Proceeds” .”
(j) The Company, the Guarantor and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the Prospectus Supplementstabilization or manipulation of the price of any security of the Company or the Guarantor in connection with the offering of the Notes.
(k) The Company and the Guarantor will use their best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(l) Each of the Company and the Guarantor will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantor or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(m) The Company and the Guarantor agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(n) In connection with any offer or sale of the Notes, the Company and the Guarantor will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantor make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act), or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S under the Securities Act, and to comply with the offering restrictions requirement of Regulation S of the Securities Act.
(o) The Company and the Guarantor agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantor to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Company and the Guarantor will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the The Company and the Guarantor agrees jointly and severally agree with each Underwriter as followsyou:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offeringTo advise you promptly and, if any, the price at which the Securities are to be purchased requested by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate to confirm such advice in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)writing, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3i) of any request by the Commission or its staff for any amendment of amendments to the Registration Statement, Statement or any Rule 462(b) Registration Statement, amendments or for any supplement supplements to the Final Prospectus or for any additional information, (4ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution suspension of qualification of the Units for offering or threatening sale in any jurisdiction, or the initiation of any proceeding for that purpose or pursuant to Section 8A of the Actsuch purposes, (5iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the receipt by happening of any event during the Company period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Guarantor, as Prospectus untrue or which requires any additions to or changes in the case may be, of Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any notice of objection to time the use Commission shall issue any stop order suspending the effectiveness of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable best efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereofor lifting of such order at the earliest possible time.
(cb) The Company shall pay the required Commission filing fees relating To furnish to the Securities within the time required by Rule 456(b)(1you three (3) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms signed copies of the Securities Registration Statement as first filed with the Commission and the offering thereofof each amendment to it, substantially in the form set forth in Exhibit B hereto including all exhibits, and in the form approved to furnish to you and each Underwriter designated by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing number of conformed copies of the Final Prospectus pursuant Registration Statement as so filed and of each amendment to Rule 424(b)it, any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleadingwithout exhibits, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(fc) IfTo prepare the Prospectus, at the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Units by you, and to use its best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time when to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered under in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the ActProspectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event occurs shall occur or condition shall exist as a result of which which, in the Final opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made at such time when the Prospectus is delivered to a purchaser, not misleading, or if if, in the opinion of counsel for the Underwriters, it shall be is necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Actapplicable law, the Company and the Guarantor promptly will (1) notify you of such event, (2) forthwith to prepare and file with the Commission an appropriate amendment or supplement which to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will correct not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such statement Underwriter or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you dealer may reasonably request.
(gf) As soon as practicable, the Guarantor will make generally available Prior to its security holders and to the Representatives an earnings statement or statements any public offering of the Guarantor Units, to cooperate with you and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed Underwriters in connection with the registration or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities Units for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may designate and will maintain request, to continue such qualifications registration or qualification in effect so long as required for the distribution of the SecuritiesUnits and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided provided, however, that in no event shall either neither the Company or the nor any Guarantor shall be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action that would subject either of them it to general consent to service of process in suits, or taxation other than those arising out of as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the SecuritiesUnits, in any jurisdiction where either of them in which it is not now so subject.
(jg) Each To mail and make generally available to their security holders as soon as practicable an earnings statement covering the twelve-month period ending September 30, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) So long as the Securities are outstanding and the Indenture or the Warrant Agreement so requires, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Company and the Guarantor agrees thatits subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, unless it has or shall have obtained the prior written consent if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the Representativesend of and for such fiscal year, it has not made together with comparable information as of the end of and will not for the preceding year, certified by independent public accountants and (ii) to mail and make any offer relating generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by close of such quarterly period, together with comparable information for the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect corresponding periods of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpreceding year.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) So long as the Securities are outstanding, to furnish to you as soon as available copies of any all reports or other communications which the Guarantor shall send to its shareholders or which furnished by the Company or the Guarantor shall from time to time publish their security holders or publicly disseminate; (ii) copies of all annual and other reports furnished to or filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company or the Guarantor is listedlisted and such other publicly available information concerning the Company and/or its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Securities under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement and the Shelf Registration Statement (as defined below) (including, in each case, as soon financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities, (iv) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Securities by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of any registration statement on Form 8-A relating to the Securities and all costs and expenses incident to the listing of the Securities on any national securities exchanges and foreign stock exchanges, (vii) the cost of printing certificates representing the Securities, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including the DTC), (ix) any fees charged by rating agencies for the rating of the Securities, (x) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Notes, (xi) the fees and expenses of the Warrant Agent and the Warrant Agent's counsel in connection with the Warrant Agreement and the Warrants and (xii) all other costs and expenses incident to the performance of the obligations of the Company and/or the Guarantor hereunder for which provision is not otherwise made in this Section.
(k) In accordance with the Warrant Agreement, to cause any Warrant Shares, upon issuance, to be listed on the principal securities exchanges, automated quotation systems or other markets within the United States of America, if any, on which other shares of Common Stock are then listed and to maintain any such listings of Warrant Shares for so long as such reports, communications or documents become availableWarrant Shares are outstanding.
(l) The Company and the Guarantor will apply the net proceeds Upon receipt of a request from the sale Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation that any of the Securities other than Warrant Shares be listed for quotation on the Nasdaq National Market or listed on the NYSE or AMEX, to use its best efforts (A) to list for quotation such Units, Notes or Warrants on the Nasdaq National Market and to maintain the listing of such Units, Notes or Warrants on the Nasdaq National Market or (B) to list, subject to notice of issuance, such Units, Notes or Warrants on the NYSE or AMEX and to maintain the listing of such Units, Notes or Warrants on the NYSE or AMEX, as the case may be, for so long as such Units, Notes or Warrants are outstanding.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes (other than (i) the Units, (ii) the Notes, (iii) securities issued in connection with the Credit Agreement, and (iv) commercial paper issued in the manner ordinary course of business), without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
(n) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities.
(o) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Units, to file a Rule 462(b) Registration Statement with the Commission registering the Units not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(p) In accordance with the Warrant Agreement, to (or, in the case of a Guarantor, to use its best efforts to cause the Company to) file and cause to become effective a shelf registration statement pursuant to Rule 415 under the Act relating to the issuance of the Warrant Shares (the "Shelf Registration Statement") and to use its best efforts to maintain the effectiveness of the Shelf Registration Statement for so long as Warrants remain outstanding and exercisable.
(q) To comply with all of their agreements set forth under the caption “Use of Proceeds” in the Prospectus SupplementWarrant Agreement and the Indenture.
(r) To obtain the approval of the DTC for book-entry transfer of the Notes and Warrants as Units and as separate securities and to comply with all of the respective agreements set forth in their representation letter to the DTC relating to the approval of the Notes and Warrants as Units and as separate securities by the DTC for book-entry transfer.
(s) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company and/or the Guarantor prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Units.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the The Company and the Guarantor agrees Guarantor, jointly and severally, agree with each Underwriter you as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offeringTo advise you promptly and, if any, the price at which the Securities are to be purchased requested by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as any of you, the Company and the Guarantor deem appropriate confirm such advice in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)writing, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4i) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement Series C Senior Subordinated Notes for offering or the institution or threatening of sale in any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectusjurisdiction, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening initiation of any proceeding for such purpose. The Company purpose by any state securities commission or other regulatory authority, and (ii) of the Guarantor will use their commercially reasonable efforts to prevent the issuance happening of any such stop order or notice of objection or the suspension of event that makes any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact made in the Offering Circular untrue or omit that requires the making of any additions to state any material fact necessary or changes in the Offering Circular in order to make the statements therein therein, in the light of the circumstances under which they were made or the circumstances then prevailing are made, not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Series C Senior Subordinated Notes under any state securities or Blue Sky laws, and if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Series C Senior Subordinated Notes under any state securities or Blue Sky laws, the Company shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you, without charge, as many copies of the Offering Circular, and any amendments or supplements thereto, as you may reasonably request. The Company and the Guarantor promptly will consent to the use of the Offering Circular, and any amendments and supplements thereto, by you in connection with Exempt Resales until the earlier of (i) notify you so that any use of the Disclosure Package may cease until it time at which the Exchange Offer Registration Statement is amended or supplemented; declared effective and (ii) the time at which the Shelf Registration Statement is declared effective.
(c) Not to amend or supplement the Disclosure Package Offering Circular prior to correct such statement or omission; the Closing Date unless you shall previously have been advised thereof and (iii) supply shall not have reasonably objected thereto after being furnished a copy thereof. The Company and the Guarantor shall promptly prepare, upon your request, any amendment or supplement to you the Offering Circular that may be reasonably necessary or advisable in such quantities as you may reasonably requestconnection with Exempt Resales.
(fd) If, at after the date hereof and prior to consummation of any time when a prospectus relating to the Securities is required to be delivered under the ActExempt Resales, any event occurs shall occur as a result of which which, in the Final Prospectus as then supplemented would include any untrue statement judgment of a material fact the Company or omit in the reasonable opinion of your counsel, it becomes necessary to state any material fact necessary amend or supplement the Offering Circular in order to make the statements therein therein, in the light of the circumstances under which they were made at such time when the Offering Circular is delivered to a prospective Eligible Purchaser, not misleading, or if it shall be is necessary to amend the Registration Statement or supplement the Final Prospectus Offering Circular to comply with the Act or the Exchange Actapplicable law, the Company and the Guarantor promptly will (1) notify you of such event, (2) forthwith to prepare and file with the Commission an appropriate amendment or supplement which to the Offering Circular so that the statements therein as so amended or supplemented will correct such statement not, in the light of the circumstances when it is so delivered, be misleading, or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably requestso that the Offering Circular will comply with applicable law.
(ge) As soon as practicable, the Guarantor will make generally available to its security holders To cooperate with you and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to your counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for in connection with the qualification of the Securities for sale Series C Senior Subordinated Notes under the securities or Blue Sky laws of such jurisdictions as you may designate reasonably request and will maintain to continue such qualifications qualification in effect so long as reasonably required for the distribution of the SecuritiesExempt Resales; provided PROVIDED, HOWEVER that in no event shall either the Company or the Guarantor shall not be obligated required in connection therewith to qualify to do business in any jurisdiction where it is not now so qualified as a foreign corporation or to take any action that would subject either of them execute a general consent to service of process in suitsany jurisdiction.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, other than those arising out to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, filing and distribution of the offering or sale Offering Circular (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) the preparation (including, without limitation, word processing and duplication costs) and delivery of this Agreement, the Indenture, the Registration Rights Agreement, all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by the Company of the Securities, (iv) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of your counsel relating to such registration or qualification), (v) furnishing such copies of the Offering Circular, and all amendments and supplements thereto, as may be reasonably requested for use in any jurisdiction where either connection with Exempt Resales, (vi) the preparation of them is not now so subject.
certificates for the Securities (jincluding, without limitation, printing and engraving thereof), (vii) Each the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Series C Senior Subordinated Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent in connection with approval of the Representatives, it has not made Securities by DTC for "book-entry" transfer and will not make any offer relating to (x) the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed performance by the Company and the Guarantor with the Commission or retained by the Company of their other obligations under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms this Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the The Company and the Guarantor agrees Guarantor, jointly and severally, agree with each Underwriter the Initial Purchaser as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will furnish to the Initial Purchaser, without charge, within one business day of the time periods specified by Rule 424(b) transmit date of the Offering Memorandum, such number of copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters Offering Memorandum as many copies of the Final Prospectus may then be amended or supplemented as you shall it may reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when prepare the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request Offering Memorandum in a form approved by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, Initial Purchaser and will not make any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension Pricing Disclosure Package or to the Offering Memorandum of which the qualification of the Securities for sale in any jurisdiction Initial Purchaser shall not previously have been advised or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereofwhich it shall reasonably object after being so advised.
(c) The Company shall pay and the required Commission filing fees relating Guarantor consent to the Securities within use of the time required by Rule 456(b)(1) under Pricing Disclosure Package and the Act without regard to the proviso therein and otherwise Offering Memorandum in accordance with Rules 456(b) the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and 457(r) under by all dealers to whom Notes may be sold, in connection with the Actoffering and sale of the Notes.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing completion of the Final Prospectus pursuant distribution of the Notes by the Initial Purchaser to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Company or the Guarantor or in the opinion of counsel for the Initial Purchaser, should be set forth in the Pricing Disclosure Package would or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the circumstances then prevailing not misleadingOffering Memorandum in order to comply with any law, the Company and the Guarantor promptly will (i) notify you so that any use forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchaser and dealers a reasonable number of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestcopies thereof.
(fe) IfNeither the Company nor the Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Initial Purchaser, which consent shall not be unreasonably withheld or delayed. If at any time when following issuance of a prospectus relating to the Securities is required to be delivered under the Act, Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the Final Prospectus as then supplemented would include any information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made at such time then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchaser and, if requested by the Initial Purchaser, will prepare and furnish without charge to the Initial Purchaser a Free Writing Offering Document or if it shall other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may 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 amend complete the Registration Statement distribution of the Notes; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or supplement (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(g) For a period commencing on the Final Prospectus to comply with date hereof and ending on the Act or 90th day after the Exchange Actdate of the Offering Memorandum, the Company and the Guarantor promptly will agree not to, directly or indirectly, (1i) notify you offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such eventdebt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or other securities, in cash or otherwise, (2iii) prepare and file or cause to be filed a registration statement, including any amendments (other than in connection with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicableRegistration Statement on Form S-4 filed by the Company on June 19, the Guarantor will make generally available to its security holders and 2015), with respect to the Representatives an earnings statement or statements registration of debt securities of the Guarantor and its subsidiaries which will satisfy Company substantially similar to the provisions of Section 11(a) Notes or securities convertible, exercisable or exchangeable into such debt securities of the Act Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of Goldman, except in exchange for the Exchange Notes and Rule 158 under the ActExchange Guarantees in connection with the Exchange Offer.
(h) Upon requestSo long as any of the Notes are outstanding, the Company and the Guarantor will furnish at their expense to the Representatives and Initial Purchaser, and, upon request, to counsel for the Underwriters, without charge, signed or conformed copies holders of the Registration Statement (including exhibits thereto) Notes and to each other Underwriter a copy prospective purchasers of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be Notes the information required by Rule 144A(d)(4) under the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably requestSecurities Act (if any).
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner set forth Pricing Disclosure Package and the Offering Memorandum under the caption “Use of Proceeds” .”
(j) The Company, the Guarantor and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the Prospectus Supplementstabilization or manipulation of the price of any security of the Company or the Guarantor in connection with the offering of the Notes.
(k) The Company and the Guarantor will use their best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(l) Each of the Company and the Guarantor will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantor or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(m) The Company and the Guarantor agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser or the Eligible Purchasers of the Notes.
(n) In connection with any offer or sale of the Notes, the Company and the Guarantor will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchaser and any of its affiliates, as to whom the Company and the Guarantor make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act), or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S under the Securities Act, and to comply with the offering restrictions requirement of Regulation S of the Securities Act.
(o) The Company and the Guarantor agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantor to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Company and the Guarantor will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchaser’s obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees agrees, jointly and severally, with each Underwriter as followsthe several Underwriters that:
(a) Immediately following the execution Each of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth use its best efforts to cause the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offeringRegistration Statement, if any, not effective at the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if anyExecution Time, and such other information as youany amendment thereto, the Company and the Guarantor deem appropriate in connection with the offering of the Securitiesto become effective. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Basic Prospectus or any Rule 462(b) Registration Statement unless you have been the Company has furnished the Representatives a copy for their review prior to filing and neither the Company nor the Guarantor will not file any such proposed amendment or supplement to which you the Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantor will promptly advise you the Representatives (1i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff at any time when a prospectus relating to the Securities is required to be delivered under the Act for any amendment of the Registration Statement, Statement or any Rule 462(b) Registration Statement, Statement or for any supplement to the Final Prospectus 5 5 or for any additional information, (4v) of the issuance by the Commission at any time when a prospectus relating to the Securities is required to be delivered under the Act of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, and (5vi) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities 2008 Notes or 2028 Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Each of the Company and the Guarantor will use their commercially reasonable its best efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(fb) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if if, at any time when a prospectus relating to the Securities is required to be delivered under the Act, it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange ActAct or the respective rules thereunder, the Company and the Guarantor promptly will (1i) notify you the Representatives of such event, (2ii) prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (3iii) supply any supplemented Final Prospectus to you the Representatives in such quantities as you they may reasonably request.
(gc) As soon as practicable, the Guarantor Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor Company and its subsidiaries Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(hd) Upon request, the The Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) thereto and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each any Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing the Final Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ie) The Company and the Guarantor will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as you the Representatives may designate and designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that , will arrange for the determination of the legality of the Securities for purchase by institutional investors, will pay the fee of the National Association of Securities Dealers, Inc. (the "NASD"), in no event connection with its review, if any, of the offering and will pay any fees of the NASD incurred by Saloxxx Xxxxx Xxxnxx xx its capacity as a qualified independent underwriter (the "Independent Underwriter") pursuant to the rules of the NASD.
(f) Neither the Company nor the Guarantor will take, directly or indirectly, any action designed to or which constitutes or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or the resale of the Securities. 6 6
(g) Neither the Company nor the Guarantor shall either offer, sell, contract to sell or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company or the Guarantor be obligated in an offering to qualify the public (or in a private offering in which holders of debt securities are granted rights to do business in any jurisdiction where it is not now so qualified have such debt securities registered under the Act or to take any action exchange such debt securities for other debt securities that would subject either of them to service of process in suitsare so registered) from the date hereof until the first business day following the Closing Date, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained without the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing ProspectusSaloxxx Xxxxx Xxxney.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Natural Resources Usa Inc)
Agreements of the Company and the Guarantor. Each of the Company and ------------------------------------------- the Guarantor hereby agrees with each Underwriter the Initial Purchasers as follows:
(a1) Immediately following To advise the execution Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing, (i) of the Terms Agreementissuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Securities for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the Company initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of the Guarantor will prepare happening of any event during the period referred to in Section 5(c) below that makes any statement of a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified material fact made in the Base Prospectus Preliminary Offering Circular or the Offering Circular untrue or that requires any Preliminary Prospectus, the names of the Underwriters participating additions to or changes in the offering and Preliminary Offering Circular or the principal amount of Securities which each severally has agreed Offering Circular in order to purchase, make the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securitiesstatements therein not misleading. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable best efforts to prevent the issuance of any such stop order or notice of objection order suspending the qualification or the suspension exemption of any such qualification Securities under any state securities or Blue Sky laws and, if issued, to obtain as soon as possible at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the qualification or exemption of any Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreementany state securities or Blue Sky laws, the Company and the Guarantor will prepare a final term sheet, containing solely a description shall use their reasonable best efforts to obtain the withdrawal or lifting of final terms such order at the earliest possible time.
(2) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Securities Preliminary Offering Circular and the offering thereofOffering Circular, substantially and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the form Initial Purchasers' compliance with their representations and warranties and agreements set forth in Exhibit B hereto and in Section 7 hereof, the form approved by you and attached as Schedule III Company consents to the Terms Agreement use of the Preliminary Offering Circular and will file such term sheet the Offering Circular, and any amendments and supplements thereto required pursuant to Rule 433(d) under hereto, by the Act within the time required by such RuleInitial Purchasers in connection with Exempt Resales.
(e3) During such period as in the opinion of counsel for the Initial Purchasers an Offering Circular is required by law to be delivered in connection with Exempt Resales by the Initial Purchasers and in connection with market- making activities of the Initial Purchasers for so long as any Securities are outstanding, (i) not to make any amendment or supplement to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Circular which may be necessary or advisable in connection with such Exempt Resales or such market- making activities.
(4) If, at any time prior during the period referred to the filing of the Final Prospectus pursuant to Rule 424(b)in Section 5(c) above, any event occurs shall occur or condition shall exist as a result of which which, in the Disclosure Package would include any untrue statement opinion of a material fact counsel to the Initial Purchasers, it becomes necessary to amend or omit to state any material fact necessary supplement the Offering Circular in order to make the statements therein therein, in the light of the circumstances under which they were made or the circumstances then prevailing when such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if, in the Company and opinion of counsel to the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until Initial Purchasers, it is amended or supplemented; (ii) necessary to amend or supplement the Disclosure Package Offering Circular to correct such statement or omission; and (iii) supply comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to you such Offering Circular so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that such quantities Offering Circular will comply with applicable law, and to furnish to the Initial Purchasers and such other persons as you the Initial Purchasers may designate such number of copies thereof as the Initial Purchasers may reasonably request.
(f5) If, at any time when a prospectus relating Prior to the sale of all Securities is required pursuant to be delivered under the ActExempt Resales as contemplated hereby, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply cooperate with the Act or Initial Purchasers and counsel to the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file Initial Purchasers in connection with the Commission an amendment registration or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for offer and sale to the Initial Purchaser and pursuant to Exempt Resales under securities or Blue Sky laws as the laws of Initial Purchasers may reasonably request and to continue such jurisdictions as you may designate and will maintain such qualifications registration or qualification in effect so long as required for the distribution Exempt Resales and to file such consents to service of the Securitiesprocess or other documents as may be necessary in order to effect such registration or qualification; provided provided, however, that in no event shall either neither the Company or nor the Guarantor shall be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action that would subject either of them it to general consent to service of process in suits, or taxation other than those arising out of as to matters and transactions relating to the offering Preliminary Offering Circular, the Offering Circular or sale of the Securities, Exempt Resales in any jurisdiction where either of them in which it is not now so subject.
(j6) Each So long as any of the Company and the Guarantor agrees thatSecurities are outstanding, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to furnish to the Securities that would constitute an Issuer Free Writing Prospectus Initial Purchasers as soon as available copies of all reports or that would otherwise constitute a Free Writing Prospectus required to be filed other communications furnished by the Company and or any of the Guarantor to its security holders in their capacities as such or publicly available documents furnished to or filed with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed, in each case, listed and such other publicly available information concerning the Company and/or its subsidiaries as soon as such reports, communications or documents become availablethe Initial Purchasers may reasonably request.
(l7) The So long as any of the Securities remain outstanding and during any period in which the Company and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ------------ to make available to any holder of such Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act. ---------------------
(8) 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 the obligations of the Company and the Guarantor will apply under this Agreement, including: (i) the net proceeds from fees, disbursements and expenses of counsel to the Company and the Guarantor and accountants of the Company and the Guarantor in connection with the sale and delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Circular, the Offering Circular and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities, (iv) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) all expenses and listing fees in connection with the application for quotation of the Units, Initial Notes and the Warrants in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation ---- System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the ------ Trustee's counsel in connection with the Indenture, the Notes and the Guarantees, (viii) the fees and expenses of the Warrant Agent and the Warrant Agent's counsel in connection with the Warrant Agreement and the Warrants, (ix) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (x) any fees charged by rating agencies for the rating of the Securities, (xi) all costs and expenses of the Exchange Offer, any Notes Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Notes Registration Rights Agreement and the Warrant Registration Rights Agreement, (xii) all costs and expenses incurred in connection with the Pledge Account as described in the Indenture, and (xiii) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section.
(9) To use its best efforts to effect the inclusion of the Units, Initial Notes and Warrants in PORTAL and to maintain the listing of the Units, Initial Notes and Warrants on PORTAL for so long as the Units, Initial Notes and Warrants are outstanding.
(10) To obtain the approval of DTC for "book-entry" transfer of the Notes and the Warrants as Units and as separate securities, and to comply with all of its agreements set forth in the representation letters of the Company and the Guarantor to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities by DTC for "book-entry" transfer.
(11) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any securities of the Company (including any common stock of the Company) or any Guarantor or any warrants, rights or options to purchase or otherwise acquire common stock of the Company or securities of the Company or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, and (iv) commercial paper issued in the ordinary course of business), without the prior written consent of the Initial Purchasers.
(12) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Securities to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the manner set forth registration of any such sale of Securities under the caption “Use Act.
(13) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of Proceeds” in any usury laws against the Prospectus Supplementholders of any Securities.
(14) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Units.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their any terms thereof not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which that each Underwriter severally has agreed to purchase, the names of the Underwriters acting as bookrunners, managers or co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as youthe Company, the Company Guarantor and the Guarantor Underwriters deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Securities Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have has been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Securities Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable best efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheetsheet (the “Final Term Sheet”), containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet the Final Term Sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, any event or development occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act, the Company and the Guarantor promptly will (1i) notify you thereof (provided, however, that any press release notifying the public thereof shall satisfy the requirements of such event, this clause (2i)); (ii) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance compliance; and (3iii) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries Subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Securities Act, other than a Free Writing Prospectus containing the information contained in the final term sheet Final Term Sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(kj) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(lk) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus SupplementFinal Prospectus.
(l) The Company will endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the distribution and resale of the Securities; provided, however, that neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject; and provided, further, that the Company or the Guarantor shall not be obligated to maintain any such qualification for more than one year from the date of this Agreement.
(m) Other than the Securities, and except for securities that may be issued by EAH – Embraer Aircraft Holding to finance or refinance the construction of service centers and/or an industrial production facility located in the United States, during the period from the date hereof through and including the date that is 30 days after the date hereof, the Company and the Guarantor will not, without the prior written consent of the Representatives, issue, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Guarantor and having a tenor of more than one year (it being understood that nothing in this clause (m) is intended to prevent the prepayment of any existing indebtedness of the Company or the Guarantor).
(n) The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(o) Neither the Company nor the Guarantor will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of any debt security of the Company or the Guarantor or the Securities.
(p) The Company and the Guarantor will take all reasonable action necessary to enable Standard & Poor’s Rating Services, a division of McGraw Hill, Inc. (“S&P”) and Xxxxx’x Investors Service Inc. (“Moodys”) to provide their respective ratings of the Securities.
(q) The Company and the Guarantor will use their reasonable best efforts to list the Securities on the New York Stock Exchange.
(r) All payments to be made by the Company and the Guarantor to the Underwriters under this Agreement shall be paid without set-off or counterclaim, and free and clear of and without deduction or withholding for or on account of, any present or future taxes, levies, imposts by Brazil or the Cayman Islands or by any department, agency or other political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto (collectively, “Taxes”). If any Taxes are required by law to be deducted or withheld in connection with such payments, the Company and the Guarantor, as applicable, will pay an additional amount (“Additional Amount”) so that the full amount of such payment is received by the Underwriters; provided , however , that such Additional Amount will not be paid on account of any Taxes imposed or withheld by reason of the failure by the Underwriters to comply with a request of the payer addressed to the Underwriters to provide certification, information, documents or other evidence concerning the nationality, residence or identity of the Underwriters, which is required by a statute, treaty, regulation or administrative practice of the jurisdiction imposing such Taxes as a precondition to exemption from all or part of such Taxes.
Appears in 1 contract
Samples: Underwriting Agreement (Embraer - Empresa Brasileira De Aeronautica S.A.)
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; , (ii) amend or supplement the Disclosure Package to correct such statement or omission; omission and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1i) notify you of such event, (2ii) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3iii) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (xi) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (yii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each The Company and the Guarantor agree, jointly and severally, with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities which shall be reasonably disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company and the Guarantor agrees with each Underwriter as follows:
(athe Commission pursuant to Section 13(a), 13(c), 14 or 15(d) Immediately following the execution of the Terms Agreement, Exchange Act for so long as the Company and the Guarantor will prepare delivery of a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate prospectus is required in connection with the offering or sale of such Securities, and during such same period to advise the Representatives, promptly after it receives notice hereof, of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file when any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or become effective, (3) of any request by the Commission becomes effective or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or any amended Prospectus has been filed, or mailed for any additional informationfiling, (4) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any prospectus relating to the Securities, of the Registration Statement suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the institution initiation or threatening of any proceeding for that purpose any such purpose, or pursuant to Section 8A of the Act, (5) of the receipt any request by the Company Commission for the amending or the Guarantor, as the case may be, of any notice of objection to the use supplementing of the Registration StatementStatement or Prospectus or for additional information and, any amendment or supplement thereto pursuant to Rule 401(g)(2) under in the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) event of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible order preventing or suspending the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees use of any prospectus relating to the Securities within or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the time required by Rule 456(b)(1) Representatives may reasonably request to qualify such Securities for offering and sale under the Act without regard securities laws of such United States jurisdictions as the Representatives may request and to comply with such laws so as to permit the proviso continuance of sales and dealings therein and otherwise in accordance with Rules 456(b) and 457(r) under such jurisdictions for as long as may be necessary to complete the Act.
(d) Unless otherwise specified distribution of such Securities, provided, that, in the Terms Agreement, connection therewith the Company and the Guarantor will prepare shall not be required to qualify as a final term sheetforeign corporation or to file a general consent to service of process in any jurisdiction or to subject itself to taxation for doing business in any jurisdiction, containing solely a description and provided further that the expense of final terms maintaining any such qualification more than one year from the date of the Pricing Agreement relating to such Securities and shall be at the offering thereof, substantially in expense of the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file Representatives for such term sheet pursuant to Rule 433(dSecurities;
(c) under the Act within No later than the time agreed to by the Representatives following the date of the applicable Pricing Agreement, and from time to time thereafter, to furnish the Underwriters with copies of the Prospectus as amended or supplemented in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required by such Rule.
(e) If, at any time prior to the filing expiration of nine months after the date of the Final Prospectus pursuant Pricing Agreement relating to Rule 424(b), the Securities in connection with the offering or sale of such Securities and if at such time any event occurs shall have occurred as a result of which the Disclosure Package Prospectus as then amended or supplemented would include any an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made or the circumstances then prevailing when such Prospectus is delivered, not misleading, the Company and the Guarantor promptly will (i) notify you so that or, if for any use of the Disclosure Package may cease until other reason it is amended or supplemented; (ii) shall be necessary during such same period to amend or supplement the Disclosure Package Prospectus or to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered file under the Act, Exchange Act any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein document incorporated by reference in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus in order to comply with the Act, the Exchange Act or the Exchange Trust Indenture Act, to notify the Company Representatives and upon their request and subject to subsection (a) of this Section 5 to file such document and to prepare and furnish without charge to each Underwriter and to each other broker- dealer participating with them in the Guarantor promptly will (1) notify you distribution of such event, (2) prepare and file with Securities as many copies as the Commission Representatives may from time to time reasonably request of an amendment amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance compliance; and if the Representatives or any such other broker-dealer is required to deliver a prospectus in connection with sales of any of such Securities at any time nine months or more after the date of the Pricing Agreement relating to such Securities, upon the request of the Representatives but at the expense of the Underwriters or such other brokers, as the case may be, to prepare and deliver to the Representatives or such other broker-dealer as many copies as the Representatives may request of an amended Prospectus or supplement to the Prospectus complying with Section 10 (a) (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.of the Act;
(gd) As soon as practicable, the Guarantor will To make generally available to its security holders and to securityholders as soon as practicable, but in any event not later than eighteen months after the Representatives effective date of the Registration Statement (as defined in Rule 158(c)), an earnings earning statement or statements of the Guarantor and its subsidiaries subsidiaries, including the Company, (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company Rule 158 under the Act.158);
(he) Upon request, During the Company and period beginning from the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies date of the Registration Statement (Pricing Agreement for such Designated Securities and continuing to and including exhibits thereto) and to each other Underwriter a copy the earlier of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrangetermination of trading restrictions for such Designated Securities, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either notified to the Company by the Representatives or (ii) the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either Time of them to service of process in suits, other than those arising out of the offering or sale of the Delivery for such Designated Securities, in not to offer, sell, contract to sell or otherwise dispose of any jurisdiction where either of them is not now so subject.
(j) Each debt securities of the Company which mature more than one year after such Time of Delivery and the Guarantor agrees thatwhich are substantially similar to such Designated Securities, unless it has or shall have obtained without the prior written consent of the Representatives, it has not made and will 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 required to be filed by ; and
(f) If the Company and the Guarantor elect to rely upon Rule 462(b) with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of Designated Securities, the Company and the Guarantor agrees that (xshall file a Rule 462(b) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, Registration Statement with the requirements Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of Rules 164 the Pricing Agreement relating to the Designated Securities, and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request shall at the time of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send filing either pay to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such other similar form as may be designated by the Commission; and (iiifee pursuant to Rule 111(b) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus SupplementAct.
Appears in 1 contract
Agreements of the Company and the Guarantor. The Company and the Guarantor, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantor will prepare the Offering Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object promptly after being so advised.
(c) Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following consents to the execution use of the Terms Agreement, the Company Pricing Disclosure Package and the Guarantor will prepare a Final Prospectus setting forth Offering Memorandum in accordance with the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus securities or any Preliminary Prospectus, the names Blue Sky laws of the Underwriters participating jurisdictions in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities Notes are to be purchased offered by the Underwriters from the CompanyInitial Purchasers and by all dealers to whom Notes may be sold, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering and sale of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the ActNotes.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing completion of the Final Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Company or the Guarantor or if in the written advice of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the circumstances then prevailing not misleadingOffering Memorandum in order to comply with any law, the Company and the Guarantor promptly will (i) notify you so that any use forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestcopies thereof.
(fe) IfNeither the Company nor the Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed. If at any time when following issuance of a prospectus relating to the Securities is required to be delivered under the Act, Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the Final Prospectus as then supplemented would include any information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made at such time then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or if it shall other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may 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 amend complete the Registration Statement distribution of the Notes; provided that in connection therewith the Company and the Guarantor shall not be required to (i) qualify as a foreign corporation or supplement other entity or as a dealer in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(g) For a period ending on the Final Prospectus to comply with 90th day after the Act or date of the Exchange ActOffering Memorandum, the Company and the Guarantor promptly will agree not to, directly or indirectly, (i) offer, pledge, sell, or otherwise dispose of any shares of Common Stock or any securities 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 any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) make any demand for, or exercise any right with respect to, or cause to be filed a registration statement for, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc., on behalf of the Initial Purchasers, other than (1) notify you the issuance and sale by the Company of such event, the Notes offered by the Offering Memorandum; (2) prepare the issuance of the Underlying Common Stock by the Company upon conversion of the Notes or pursuant to the Warrant Confirmations, if applicable; (3) the sale, or any subsequent exercise or settlement (including in connection with any termination), of the warrants as described under “Description of the Convertible Note Hedge and file Warrant Transactions” in the Offering Memorandum; (4) the grant of options, restricted stock units or other equity-based awards for Common Stock pursuant to employee benefit plans, stock option plans or officer or director deferred compensation plans existing on the date of this Agreement; (5) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security, or the vesting of any restricted stock unit, outstanding on the date of this Agreement or issued after the date hereof under a plan described in clause (4) above; (6) the filing by the Company of any registration statement with the Commission an amendment on Form S-8 relating to the offering of securities pursuant to a plan in effect on the date hereof; (7) shares of Common Stock (or supplement which will correct options, warrants or convertible securities in respect thereof) issued in connection with a bona fide merger or acquisition transaction, provided that the transferee of such statement Common Stock (or omission options, warrants or effect convertible securities in respect thereof) so issued agrees in writing to be subject to the restrictions set forth in this Section 5(g) for the remainder of the 90-day restricted period; (8) adoption or implementation of a stockholder rights plan (i.e., “poison pill”) by the Company; or (9) any shares of Common Stock or options to purchase Common Stock issued after the date hereof in the ordinary course in connection with the hiring or retaining officers, employees, consultants or advisors, so long as any such compliance and (3) supply any supplemented Final Prospectus officers, employees, consultants or advisors execute a lock-up agreement substantially in the form of Exhibit B hereto or as otherwise agreed to you in such quantities as you may reasonably request.
(g) As soon as practicable, by the Guarantor will make generally available to its security holders Representatives; and to the Representatives an earnings statement or statements cause each executive officer and director of the Guarantor and its subsidiaries which will satisfy Company set forth on Schedule V hereto to furnish to the provisions Representatives, on or prior to the date of Section 11(a) this Agreement, a letter or letters, substantially in the form of Exhibit B hereto (the Act and Rule 158 under the Act“Lock-Up Agreements”).
(h) Upon requestBetween the date hereof and the Closing Date (both dates included), neither the Company and nor the Guarantor will furnish do any act or thing which, had the Firm Notes then been in issue, would result in an adjustment to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies conversion price of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably requestFirm Notes.
(i) The Company and To the Guarantor will arrange, if necessaryextent not available on the Commission’s EXXXX system, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution Notes remain “restricted securities” as defined in Rule 144(a)(3) under the Securities Act, the Company will furnish at its expense to the Initial Purchasers, and, upon request, to the holders of the Securities; provided that in no event shall either the Company Notes or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out Underlying Common Stock and prospective purchasers of the offering Notes or sale of the Securities, in any jurisdiction where either of them is not now so subjectUnderlying Common Stock the information required by Rule 144A(d)(4) under the Securities Act (if any).
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will 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 required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner set forth Pricing Disclosure Package and the Offering Memorandum under the caption “Use of Proceeds” .”
(k) None of the Company, the Guarantor or any of their respective executive officers, directors and subsidiaries will not take, directly or indirectly, any action designed to or that reasonably could be expected to cause or result in the Prospectus Supplementstabilization or manipulation of the price of any security of the Company or the Guarantor in connection with the offering of the Notes in violation of any U.S. securities laws.
(l) The Company will use commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Company will not, and will not permit any of its executive officers, directors or subsidiaries to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company or its executive officers, directors or subsidiaries and resold in a transaction registered under the Securities Act or pursuant to an exemption from registration under the Securities Act.
(n) Each of the Company and the Guarantor agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes. Each of the Company and the Guarantor will take reasonable precautions designed to insure that any offer or sale by the Company or the Guarantor or their respective executive officers, directors or subsidiaries of any Notes or any substantially similar security issued by the Company or the Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to Rule 144A under, or Regulation D of, the Securities Act.
(o) The Company agrees to use commercially reasonable efforts to comply with all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) [Reserved].
(q) The Company agrees to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock to enable the Company to issue the maximum number of shares of Common Stock issuable upon conversion of the Notes.
(r) The Company agrees to use its commercially reasonable efforts to cause to be listed, subject to notice of issuance, the Underlying Common Stock issuable upon conversion of the Notes on the NASDAQ.
Appears in 1 contract
Agreements of the Company and the Guarantor. Each of the Company and the Guarantor hereby agrees with each Underwriter the Initial Purchasers as follows:
(a) Immediately following To advise the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offeringInitial Purchasers promptly and, if any, the price at which the Securities are to be purchased requested by the Underwriters from the CompanyInitial Purchasers, the initial public offering price, the selling concession and reallowance, if any, and confirm such other information as you, the Company and the Guarantor deem appropriate advice in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)writing, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4i) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or the institution or threatening exemption from qualification of any proceeding Senior Notes for that purpose offering or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the institution or threatening initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purposepurpose and (ii) of the happening of any event during the period referred to in Section 5(c) hereof that makes any statement of a material fact made in the Preliminary Offering Circular or the Offering Circular untrue or that requires any additions to or changes in the Preliminary Offering Circular or the Offering Circular in order to make the statements therein not misleading. The Company and the Guarantor will shall use their commercially reasonable its best efforts to prevent the issuance of any such stop order or notice of objection order suspending the qualification or the suspension exemption of any such qualification Senior Notes under any state securities or Blue Sky laws and, if issuedat any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or exemption of any Senior Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) At any time prior to the completion of Exempt Resales by the Initial Purchasers, to obtain furnish the Initial Purchasers as soon many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto, as possible the withdrawal thereofInitial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) The Company shall pay the required Commission filing fees relating At any time prior to the Securities within completion of Exempt Resales by the time required by Rule 456(b)(1Initial Purchasers and in connection with market-making activities of the Initial Purchasers for so long as any Senior Notes are outstanding, (i) under the Act without regard not to make any amendment or supplement to the proviso therein Offering Circular of which the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object (within five business days after receiving a copy thereof) after being so advised and otherwise (ii) to prepare promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Circular which may be necessary or advisable in accordance connection with Rules 456(b) and 457(r) under the Actsuch Exempt Resales or such market-making activities.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior during the period referred to the filing of the Final Prospectus pursuant to Rule 424(b)in Section 5(c) hereof, any event occurs shall occur or condition shall exist as a result of which which, in the Disclosure Package would include any untrue statement opinion of a material fact counsel to the Initial Purchasers, it becomes necessary to amend or omit to state any material fact necessary supplement the Offering Circular in order to make the statements therein therein, in the light of the circumstances under which they were made or the circumstances then prevailing when such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if, in the Company and opinion of counsel to the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until Initial Purchasers, it is amended or supplemented; (ii) necessary to amend or supplement the Disclosure Package Offering Circular to correct such statement or omission; and (iii) supply comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to you such Offering Circular so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that such quantities Offering Circular will comply with applicable law, and to furnish to the Initial Purchasers and such other persons as you the Initial Purchasers may designate such number of copies thereof as the Initial Purchasers may reasonably request.
(fe) If, at any time when a prospectus relating Prior to the Securities is required sale of all Senior Notes pursuant to be delivered under the ActExempt Resales as contemplated hereby, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply cooperate with the Act or Initial Purchasers and counsel to the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file Initial Purchasers in connection with the Commission an amendment registration or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities Senior Notes for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as you the Initial Purchasers may designate reasonably request and will maintain to continue such qualifications qualification in effect so long as required for the distribution Exempt Resales and to file such consents to service of the Securitiesprocess or other documents as may be necessary in order to effect such registration or qualification; provided that in no event shall either neither the Company or nor the Guarantor shall be obligated required in connection therewith to register or qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or to take any action that would subject either of them it to general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, taxation in any jurisdiction where either of them in which it is not now so subject.
(jf) Each of So long as the Company and the Guarantor agrees thatNotes are outstanding, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to furnish to the Securities that would constitute an Issuer Free Writing Prospectus Initial Purchasers as soon as available copies of all reports or that would otherwise constitute a Free Writing Prospectus required to be filed other communications furnished by the Company and or any of the Guarantor Guarantors to the holders of Notes or furnished to or filed with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed, listed and such other publicly available information concerning the Company and/or its subsidiaries as the Initial Purchasers may reasonably request.
(g) So long as any of the Senior Notes remain outstanding and during any period in each casewhich the Company and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as soon as amended (the ?Exchange Act?), to make available to any holder of Senior Notes in connection with any sale thereof and any prospective purchaser of such reportsSenior Notes from such holder, communications the information (?Rule 144A Information?) required by Rule 144A(d)(4) under the Securities Act.
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company and the Guarantor under this Agreement, including (i) the fees, disbursements and expenses of counsel to the Company and the Guarantor and accountants of the Company and the Guarantor in connection with the sale and delivery of the Senior Notes to the Initial Purchasers and pursuant to Exempt Resales, and all other fees or expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Circular, the Offering Circular and all amendments and supplements to any of the foregoing (including financial statements) specified in Section 5(b) and 5(c) hereof prior to or during the period specified in Section 5(c) hereof, including the mailing and delivery of copies thereof to the Initial Purchasers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Senior Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents become availablein connection with the offering, purchase, sale or delivery of the Senior Notes, (iv) all expenses in connection with the registration or qualification of the Senior Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Senior Notes and the Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Senior Notes in the National Association of Securities Dealers, Inc. (?NASD?) Automated Quotation System - PORTAL (?PORTAL?), (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, (xi) all out-of-pocket expenses incurred by Jefferies in connection with its services rendered and to be rendered under the letter agreement, dated October 21, 1997, between the Company and Jefferies (including, without limitation, the fees and disbursements of Jefferies' counsel, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures) up to a maximum amount of $450,000, and (xii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section.
(i) To use its best efforts to effect the inclusion of the Senior Notes in PORTAL and to maintain the listing of the Senior Notes on PORTAL for so long as the Senior Notes are outstanding.
(j) To obtain the approval of DTC for ?book-entry? transfer of the Notes, and to comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for ?book-entry? transfer.
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or the Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or the Guarantor substantially similar to the Senior Notes and the Guarantees (other than (i) the Senior Notes and the Guarantee and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Initial Purchasers.
(l) The Company and Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Guarantor will apply the net proceeds from Securities Act) that would be integrated with the sale of the Securities Senior Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the manner set forth registration of any such sale of the Senior Notes under the caption “Use Securities Act.
(m) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of Proceeds” in the Prospectus SupplementSenior Notes and the Guarantee.
Appears in 1 contract
Samples: Purchase Agreement (Fields MRS Original Cookies Inc)
