Agreements of the Company. The Company agrees with the several Underwriters that: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable. (b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule. (c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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. (d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158. (f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company. (g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. (i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities. (j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002. (k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 7 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for (1) the offering of the SecuritiesSecurities and (2) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 7 contracts
Samples: Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 6 contracts
Samples: Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or (including the Final Prospectus) to the Basic Prospectus unless the Company has furnished the Representative Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they the Representatives reasonably object. The Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, Prospectus to be mailed to the Commission for filing pursuant to Rule 424 by first class certified or registered mail or by overnight courier and any supplement thereto, will cause the Final Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingsaid Rule. The Company will promptly advise the Representative Representatives promptly (i) when the Final Prospectus, and any supplement thereto, Prospectus shall have been filed with mailed to the Commission for filing pursuant to Rule 424(b)424, (ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus or for any additional informationinformation relating to the Securities, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use described in clause (iv) of the Registration Statement preceding sentence and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheetcause or, containing solely a description of final terms of if appropriate, will have caused any Computational Materials and ABS Term Sheets (each as defined in Section 10 below) with respect to the Securities and which are delivered by the offering thereof, in Underwriters to the Company pursuant to or as contemplated by Section 10 to be filed with the Commission on a form acceptable to you Current Report on Form 8-K (the “Final Term Sheet”"Current Report") and to file such term sheet pursuant to Rule 433(d) within 13a-11 under the time required Exchange Act not later than, in each such case, the business day immediately following [the earlier of (i)] the day on which such Computational Materials are delivered to counsel for the Company by such Rule.
(c) If, at any time the Underwriters prior to 10:30 a.m., New York City time, [and (ii) the filing of date hereof,] and will promptly advise the Underwriters when each such Current Report has been so filed. Each such Current Report shall be incorporated by reference in the Final Prospectus and the Registration Statement. Notwithstanding the two preceding sentences, the Company shall have no obligation to file materials provided by the Underwriters pursuant to Rule 424(bor as contemplated by Section 10 which, in the reasonable determination of the Company after making reasonable efforts to consult with the Underwriters, are not required to be filed pursuant to the No-Action Letters (as defined in Section 10 below), any event occurs as a result of or which the Disclosure Package would include contain erroneous information or contain any untrue statement of a material fact or or, which, when read in conjunction with the Final Prospectus, omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading; it being understood, however, that the Company will (i) notify promptly shall have no obligation to review or pass upon the Representative so that accuracy or adequacy of, or to correct, any use of Computational Materials or ABS Term Sheets provided by the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement Underwriters to the Disclosure Package Company pursuant to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestSection 10 hereof.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, (iii) compliance and will use its best efforts to have cause any required post-effective amendment to the Registration Statement or new registration statement declared containing such amendment to be made effective as soon as practicable possible; provided, however, that the Company will not be required to file any such amendment or supplement with respect to any Computational Materials and/or ABS Term Sheets incorporated by reference in order to avoid any disruption in use of the Final Prospectus and (iv) supply other than any supplemented Final Prospectus amendments or supplements of such Computational Materials and/or ABS Term Sheets that are furnished to the Representative Company pursuant to Section 10(d) hereof which the Company determines to file in such quantities as the Representative may reasonably requestaccordance therewith.
(ed) As soon as practicable, the The Company will make generally available to its security holders and to the Representative a consolidated Representatives as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries, which will satisfy (in form complying with the provisions of Section 11(aRule 158 of the regulations under the Act) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Act and Rule 158Registration Statement.]
(fe) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed executed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus relating to the Securities by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of any Preliminary Prospectus, Final Prospectus and the Final Prospectus and any Issuer Free Writing Prospectus amendments thereof and any supplement supplements thereto (other than exhibits to a Current Report) as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the initial offering of the Securities, provided that are required to any additional expenses incurred in connection with the requirement of delivery of a market-making prospectus will be prepared, furnished or delivered borne by the Company________________________________.
(gf) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 5 contracts
Samples: Underwriting Agreement (Nationslink Funding Corp), Underwriting Agreement (Nationslink Funding Corp), Underwriting Agreement (Nationslink Funding Corp)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 424, in the manner and within the time period required by Rule 424, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(l) The Company will maintain a trustee, paying agent and registrar for the Notes.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company will use its reasonable best efforts to effect within thirty (30) days of any Underwriterthe Closing Date and to maintain the listing of the Notes on Nasdaq.
Appears in 5 contracts
Samples: Underwriting Agreement (Gladstone Investment Corporation\de), Underwriting Agreement (Gladstone Capital Corp), Underwriting Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ij) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(jk) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kl) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 5 contracts
Samples: Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior The Company will cause the Prospectus, in a form approved by the Underwriters, to be filed pursuant to Rule 424(b) under the Act and will notify the Underwriters promptly of such filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Bonds and of the offering, and will file such Final Term Sheet pursuant to Rule 433(d) under the Act, and will notify the Underwriters promptly of such filing. During the period for which a prospectus relating to the termination Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Underwriters (i) when any amendment to the Registration Statement has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Underwriters with copies thereof, (iii) of any request by the Commission for any amendment or supplement to the Registration Statement or the Prospectus or for any additional information, (iv) of the offering issuance by the Commission of any stop order or of any order preventing or suspending the use of the SecuritiesRegistration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, (vi) of the initiation or threatening of any proceeding or examination for any such purpose, and (vii) of any request by the Commission for the amending or supplementing of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will not file (i) any amendment of to the Registration Statement or supplement to any Preliminary the Prospectus or (excluding documents deemed to be incorporated by reference into the Final Prospectus Prospectus) unless the Company has furnished to the Representative Underwriters a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they the Underwriters reasonably object. The object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Underwriters a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will cause consult with the Final ProspectusUnderwriters as to any comments which the Underwriters make in a timely manner with respect to such document. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), properly completed, the Company will promptly file all reports and any supplement thereto, definitive proxy or information statements required to be filed in a form acceptable to by the Representative Company with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(bSection 13(a), (ii) when13(c), prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed 14 or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds. Following the Closing Date and, for as long as a prospectus relating to the Bonds is required to be delivered under the Act, in the event of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by post-effective amendment thereto, the Company 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 will promptly take such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, steps including, if necessarywithout limitation, by filing an amendment to amending the Registration Statement or filing a new registration statement statement, at its own expense, as may be necessary to permit offers and using its best efforts sales of the Bonds by the Underwriters (and references herein to have the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative a consolidated Underwriters an earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Underwriters conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Underwriters may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Underwriters, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Underwriters and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Underwriters may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions within in the United States as the Representative Underwriters may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesBonds; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeUnderwriters, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc.the Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably consent shall not 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesunreasonably withheld.
(j) The In connection with the offering of the Bonds, until the Underwriters shall have notified the Company of the completion of the sale of the Bonds, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest in any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Bonds.
(k) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterBonds.
Appears in 3 contracts
Samples: Underwriting Agreement (Northern States Power Co /Wi/), Underwriting Agreement (Southwestern Public Service Co), Underwriting Agreement (Southwestern Public Service Co)
Agreements of the Company. The Company agrees with the several Underwriters Agent that:
(a) Prior The Company, subject to Section 6(a)(ii), will comply with the termination requirements of the offering of the SecuritiesRule 424, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause notify the Final ProspectusAgent as soon as practicable, properly completedand, and any supplement theretoin the cases of Sections 6(a)(ii)-(iv), to be filed confirm the notice in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative writing, (i) when, at any time when a prospectus relating to the Final ProspectusShares is required to be delivered under the 1933 Act, and or any supplement thereto, to the Prospectus or any amended Prospectus shall have been filed with in relation to the Commission pursuant to Rule 424(b)Shares, (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment Commission relating to the Registration Statement shall have been filed or become effectiveStatement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional informationinformation in each case in relation to the Shares, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Prospectus, or of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement pursuant to Section 8(d) of the 1933 Act, and, upon if any such issuance, occurrence or notice of objectionstop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablemoment.
(b) The To the extent it relates to the offering of the Shares hereunder, the Company will give the Agent notice of its intention to file or prepare any amendment to the Registration Statement, or any supplement or revision to either the Base Prospectus included in the Registration Statement when it most recently became effective or to the Prospectus Supplement, and will furnish the Agent with copies of any such documents a final term sheetreasonable amount of time prior to such proposed filing or use, containing solely a description of final terms as the case may be, and will, in good faith, consider any reasonable comments of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleAgent or Agent’s counsel.
(c) If, at any time prior when a prospectus relating to the filing of Shares is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus as then amended or 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, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the 1933 Act or the Exchange Act or Act, in each case in relation to the respective rules thereunder, Shares including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Agent of any such eventevent so that any use of the Prospectus may cease or be suspended until it is amended or supplemented or it otherwise complies with the 1933 Act or the Exchange Act, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and sale of Shares and (iv) supply any supplemented Final Prospectus to the Representative Agent in such quantities as the Representative Agent may reasonably request.
(ed) As soon as practicablepracticable after furnishing with the Commission, the Company will make generally available to its security holders and to the Representative a consolidated Agent an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative and counsel for the UnderwritersAgent, without charge, signed 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 the Agent or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)1933 Act, as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Agent may reasonably request. The Except as otherwise described herein, the Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such states and jurisdictions within the United States as the Representative Agent may reasonably designate, designate and the Company agrees to and will maintain such qualifications in effect so long as required for to complete the distribution and sale of the SecuritiesShares; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, as use the case may be, Net Proceeds in the prior written consent manner specified in the Prospectus under “Use of the Representative, and Proceeds.”
(iih) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the The Company, it has not made and during the period when the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, 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” (as defined in Rule 405) file all documents required to be filed by the Company with the Commission or retained pursuant to the 1940 Act and the Exchange Act within the time periods required by the Company under Rule 433, other than 1940 Act and the Final Term Sheet described above or other free writing prospectuses containing solely a description Exchange Act and the rules and regulations of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treatCommission thereunder, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingrespectively.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause maintain its qualification as a regulated investment company under Subchapter M of the Company’s Code provided, however, the Company may change the nature of its business so as to cease to be, or to withdraw its election as, a business development company, with the approval of the board of directors and officers, in their capacities a vote of stockholders as such, to comply with such laws, rules and regulations, including, without limitation, the provisions required by Section 58 of the Sarbanes Oxley 1940 Act of 2002or any successor provision.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares, except as may be allowed by law.
(k) In connection with the offering and sale of the Shares, the Company will file with Nasdaq all documents and notices, and make all certifications, required of companies that have securities that are listed on Nasdaq and will maintain such listing.
(l) The Company will cooperate with any reasonable due diligence review conducted by the Agent (or its counsel or other representatives), including, without limitation, providing information and making available documents and senior corporate officers, as the Agent may reasonably request; provided, however, that the Company makes no agreement shall be required to make available documents and senior corporate officers only (i) at the Company’s principal offices and (ii) during the Company’s ordinary business hours. The parties acknowledge that the due diligence review contemplated by this Section 6(l) will include, without limitation, during the term of this Agreement a quarterly diligence conference to occur within five Business Days after each Quarterly Filing (unless otherwise determined by the Company and the Agent) whereby the Company will make its senior corporate officers available to address certain diligence inquiries of the Agent and will provide such additional information and documents as the Agent may reasonably request.
(m) The Company agrees that on such dates as the Exchange Act shall require, the Company will include in a filed annual report on Form 10-K or quarterly report on Form 10-Q the amount of Shares sold through the Agent, the Net Proceeds to the activities Company and the compensation payable by the Company to the Agent with respect to such Shares for such annual or quarterly period, as applicable.
(n) Upon the commencement of the offering of Shares under this Agreement and each time the Company files a Quarterly Filing or a Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares by means of a post-effective amendment or supplement (each such event shall be deemed a “Representation Date”), the Company and the Adviser shall each furnish the Agent with a certificate, in the form attached hereto as Exhibit 6(n). The requirement to provide a certificate under this Section 6(n) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and Agent was not provided with the certificates under this Section 6(n), then before the Agent resumes sales of any UnderwriterShares, the Company and the Adviser shall provide the Agent with certificates, in the form attached hereto as Exhibit 6(n).
(o) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after each Representation Date, the Company shall cause to be furnished to the Agent a written opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Company, the Adviser and the Administrator (the “Company Counsel”), dated the commencement of the offering of Shares hereunder or the Representation Date, as applicable, in form and substance reasonably satisfactory to the Agent but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, Company Counsel may furnish the Agent with a letter to the effect that the Agent may rely on prior opinions delivered under this Section 6(o) to the same extent as if they were dated the date of such letter (except that statements in such prior opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). Notwithstanding the foregoing, the requirement to provide such opinion shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with opinion from Company Counsel under this Section 6(o), then before the Agent resumes sales of any Shares, the Company shall cause to be furnished to the Agent the opinion of Company Counsel contemplated in this Section 6(o).
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters Agent that:
(a) Prior The Company, subject to Section 6(a)(ii), will comply with the termination requirements of the offering of the SecuritiesRule 497, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause notify the Final ProspectusAgent as soon as practicable, properly completedand, and any supplement theretoin the cases of Sections 6(a)(ii)-(iv), to be filed confirm the notice in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative writing, (i) when, at any time when a prospectus relating to the Final ProspectusShares is required to be delivered under the 1933 Act, and or any supplement thereto, to the Prospectus or any amended Prospectus shall have been filed with in relation to the Commission pursuant to Rule 424(b)Shares, (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment Commission relating to the Registration Statement shall have been filed or become effectiveStatement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional informationinformation in each case in relation to the Shares, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Prospectus, or of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts promptly effect the filings necessary pursuant to Rule 497 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement pursuant to Section 8(d) of the 1933 Act, and, upon if any such issuance, occurrence or notice of objectionstop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablemoment.
(b) The To the extent it relates to the offering of the Shares hereunder, the Company will give the Agent notice of its intention to file or prepare any amendment to the Registration Statement, or any supplement or revision to either the Base Prospectus included in the Registration Statement when it most recently became effective or to the Prospectus Supplement, and will furnish the Agent with copies of any such documents a final term sheetreasonable amount of time prior to such proposed filing or use, containing solely a description of final terms as the case may be, and will, in good faith, consider any reasonable comments of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleAgent or Agent’s counsel.
(c) If, at any time prior when a prospectus relating to the filing of Shares is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus as then amended or 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, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the 1933 Act or the Exchange Act or Act, in each case in relation to the respective rules thereunder, Shares including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Agent of any such eventevent so that any use of the Prospectus may cease or be suspended until it is amended or supplemented or it otherwise complies with the 1933 Act or the Exchange Act, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and sale of Shares and (iv) supply any supplemented Final Prospectus to the Representative Agent in such quantities as the Representative Agent may reasonably request.
(ed) As soon as practicablepracticable after furnishing with the Commission, the Company will make generally available to its security holders and to the Representative a consolidated Agent an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative and counsel for the UnderwritersAgent, without charge, signed 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 the Agent or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)1933 Act, as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Agent may reasonably request. The Except as otherwise described herein, the Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such states and jurisdictions within the United States as the Representative Agent may reasonably designate, designate and the Company agrees to and will maintain such qualifications in effect so long as required for to complete the distribution and sale of the SecuritiesShares; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, as use the case may be, Net Proceeds in the prior written consent manner specified in the Prospectus under “Use of the Representative, and Proceeds.”
(iih) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the The Company, it has not made and during the period when the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, 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” (as defined in Rule 405) file all documents required to be filed by the Company with the Commission or retained pursuant to the 1940 Act and the Exchange Act within the time periods required by the Company under Rule 433, other than 1940 Act and the Final Term Sheet described above or other free writing prospectuses containing solely a description Exchange Act and the rules and regulations of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treatCommission thereunder, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingrespectively.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause maintain its qualification as a regulated investment company under Subchapter M of the Company’s Code provided, however, the Company may change the nature of its business so as to cease to be, or to withdraw its election as, a business development company, with the approval of the board of directors and officers, in their capacities a vote of stockholders as such, to comply with such laws, rules and regulations, including, without limitation, the provisions required by Section 58 of the Sarbanes Oxley 1940 Act of 2002or any successor provision.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares, except as may be allowed by law.
(k) In connection with the offering and sale of the Shares, the Company will file with Nasdaq all documents and notices, and make all certifications, required of companies that have securities that are listed on Nasdaq and will maintain such listing.
(l) The Company will cooperate with any reasonable due diligence review conducted by the Agent (or its counsel or other representatives), including, without limitation, providing information and making available documents and senior corporate officers, as the Agent may reasonably request; provided, however, that the Company makes no agreement shall be required to make available documents and senior corporate officers only (i) at the Company’s principal offices and (ii) during the Company’s ordinary business hours. The parties acknowledge that the due diligence review contemplated by this Section 6(l) will include, without limitation, during the term of this Agreement a quarterly diligence conference to occur within five Business Days after each Quarterly Filing (unless otherwise determined by the Company and the Agent) whereby the Company will make its senior corporate officers available to address certain diligence inquiries of the Agent and will provide such additional information and documents as the Agent may reasonably request.
(m) The Company agrees that on such dates as the Exchange Act shall require, the Company will include in a filed annual report on Form 10-K or quarterly report on Form 10-Q the amount of Shares sold through the Agent, the Net Proceeds to the activities Company and the compensation payable by the Company to the Agent with respect to such Shares for such annual or quarterly period, as applicable.
(n) Upon the commencement of the offering of Shares under this Agreement and each time the Company files a Quarterly Filing or a Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares by means of a post-effective amendment or supplement (each such event shall be deemed a “Representation Date”), the Company and the Adviser shall each furnish the Agent with a certificate, in the form attached hereto as Exhibit 6(n). The requirement to provide a certificate under this Section 6(n) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with a certificate under this Section 6(n), then before the Agent resumes sales of any UnderwriterShares, the Company shall provide the Agent with a certificate, in the form attached hereto as Exhibit 6(n).
(o) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after each Representation Date, the Company shall cause to be furnished to the Agent a written opinion of Proskauer Rose LLP, counsel for the Company, the Adviser and the Administrator (the “Company Counsel”), dated the commencement of the offering of Shares hereunder or the Representation Date, as applicable, in form and substance reasonably satisfactory to the Agent but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, Company Counsel may furnish the Agent with a letter to the effect that the Agent may rely on prior opinions delivered under this Section 6(o) to the same extent as if they were dated the date of such letter (except that statements in such prior opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). Notwithstanding the foregoing, the requirement to provide such opinion shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with opinion from Company Counsel under this Section 6(o), then before the Agent resumes sales of any Shares, the Company shall cause to be furnished to the Agent the opinion of Company Counsel contemplated in this Section 6(o).
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Contracts (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative you with a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingprescribed. The Company will promptly advise the Representative Representatives (i1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or and become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to that would prevent its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will promptly use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement prevention and, upon such issuance, occurrence or notice of objectionprevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionprevention, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable, unless the Company shall, in its sole judgment, determine that it is in the Company’s best interest not to do so.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereofsheet relating to such Securities, in a form acceptable to you (approved by the “Final Term Sheet”) Representatives and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior Prior to the filing termination of any offering of the Final Prospectus pursuant to Rule 424(b)Securities, any if there occurs an event occurs or development as a result of which the Disclosure Package or any Issuer Free Writing Prospectus would include any an untrue statement of a material fact or would 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 at such time then prevailing, not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package or any Issuer Free Writing Prospectus may cease until it is amended or supplemented, (ii) and will amend or supplement supplement, at the expense of the Company, the Disclosure Package or any such Issuer Free Writing Prospectus, as the case may be, to correct any such statement misstatements or omission, omissions and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Prospectus, as then supplemented 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i1) notify promptly the Representative Representatives of such event, (ii2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, (iii3) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv4) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, subsidiaries (which need not be audited) covering a 12-month period beginning after the date on which the Final Prospectus is filed pursuant to Rule 424 under the Act that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed Underwriters 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority, Inc. (“FINRA”), in connection with its review of the offering; provided provided, however, that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, including, without limiting the generality of the foregoing, all costs, taxes and expenses incident to the issue and delivery of the Securities, all fees and expenses of the Company’s counsel and accountants, and all costs and expenses incident to the preparing, printing, filing and distributing of all documents relating to the offering, and will reimburse the Underwriters for any expenses and disbursements (including fees and disbursements of counsel not exceeding the amount, if any, specified in the Terms Agreement) incurred by them in connection with the matters referred to in Section 5(g) hereof and the preparation of memoranda relating thereto, for any filing fee of FINRA relating to the Securities, and for any fees charged by investment rating agencies for rating the Securities. Notwithstanding the foregoing, and subject to clause (i) below, in connection with any sale of Securities to any Underwriter pursuant to any Terms Agreement, the fees and disbursements of counsel for the Underwriters will be paid by the Underwriters party to the applicable Terms Agreement.
(i) If (1) a sale of Securities provided for in this Agreement is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled or (2) a Terms Agreement is terminated by the Representatives in accordance with the provisions of Section 7 or Section 11, the Company will reimburse the Underwriters named in the Terms Agreement for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with the proposed purchase and sale of the Securities.
(i) If so stated in the Terms Agreement, the Company will use its commercially reasonable efforts to cause an application for the listing of the Securities on The New York Stock Exchange, Inc. or listing or quotation on such other securities exchange or automatic quotation system specified in the Terms Agreement and for the registration of the Securities under the Exchange Act to become effective.
(j) The Company agrees that, unless it has obtained or will obtain, as the case may be, obtains the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other a free writing prospectuses prospectus containing solely a description the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided, however, that the prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities and Free Writing Prospectuses included in Schedule II to the offering thereofTerms Agreement. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” ”. The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ik) During The Company will not, without your consent, offer or sell any debt securities denominated in the currency in which the Securities are denominated having a maturity of more than one year (except under prior contractual commitments or pursuant to bank credit agreements) other than the Securities or publicly announce an intention to effect any such transaction during the period beginning on the date hereof Execution Time and continuing to and including ending on the business day immediately following the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kl) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (American Express Co), Underwriting Agreement (American Express Credit Corp), Underwriting Agreement (American Express Co)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment or supplement or Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose purpose, and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430A and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 424, in the manner and within the time periods required by Rules 424 and 430A, notify the Representative of the filing thereof; and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Statutory Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the Statutory Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Statutory Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Statutory Prospectus to comply with any applicable law, the Company will promptly notify the Underwriters and prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the Statutory Prospectus.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now so subjectbe audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(i) The No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 30 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may beCompany, otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, Statutory Prospectus and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(l) The Company will maintain a trustee, paying agent and registrar for the Notes.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act and the 1934 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the 1934 Act.
(o) The Company will use commercially reasonable efforts to maintain a rating by a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) of the 1934 Act (“NRSRO”) while any Notes remain outstanding.
(p) The Company will use its reasonable best efforts to effect within thirty (30) days of the activities Closing Date and to maintain the listing of any Underwriterthe Notes on Nasdaq.
Appears in 3 contracts
Samples: Underwriting Agreement (Abacus Life, Inc.), Underwriting Agreement (Abacus Life, Inc.), Underwriting Agreement (Abacus Life, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters Agent that:
(a) Prior The Company, subject to Section 6(a)(ii), will comply with the requirements of Rule 497 or Rule 424, as applicable, and will notify the Agent as soon as practicable, and, in the cases of Sections 6(a)(ii)-(iv), confirm the notice in writing, (i) when, at any time when a prospectus relating to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, Shares is required to be filed in a form acceptable to delivered under the Representative 1933 Act (whether physically or through compliance with the Commission Rule 153, Rule 172 or other similar rule as applied pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(bSBCAA or otherwise), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivein relation to the Shares, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional informationinformation in each case in relation to the Shares, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Prospectus, or of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purpose. The Company will use its best efforts to prevent purposes, (v) of the issuance filing of any such stop order document pursuant to the Exchange Act which will be incorporated by reference, or deemed to be incorporated by reference pursuant to the SBCAA or the occurrence rules of the Commission promulgated thereunder or otherwise, into the Registration Statement (other than documents that will be available via XXXXX) and (vi) of receipt by the Company of any such suspension or notice of objection of the Commission to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, any post-effective amendment thereto pursuant to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) Rule 401(g)(2). The Company will prepare a final term sheet, containing solely a description of final terms of promptly effect the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d) within the time required by 497 or Rule 424, as applicable, and will take such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 497 or Rule 424, as applicable, was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the prospectus. The Company will make generally available every reasonable effort to its security holders and to prevent the Representative a consolidated earnings statement or statements issuance of any stop order suspending the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies effectiveness 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430A under the 1933 Act and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering thereofof the Securities. The Company will promptly effect the filings required under Rule 424, in a form acceptable to you (the “Final Term Sheet”) manner and to file such term sheet pursuant to Rule 433(d) within the time period required by Rule 424, notify the Representative of the filing thereof, and take such Rulesteps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to the filing be delivered in connection with sales of the Final Prospectus pursuant to Rule 424(b)Securities, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended misleading or supplemented, (ii) to amend or supplement the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you Prospectus in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to order that the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall will be necessary necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, file a new registration statement or to amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5such amendment, an amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to comply with such compliancerequirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (iiiii) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus practicable, and (iviii) supply any supplemented Final Prospectus furnish to the Representative in Representative, without charge, such quantities number of copies of such amendment or supplement as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation, to do business become subject to taxation as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of the Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, pledge, sale, contract to sell, grant of any option for the sale of, or other transfer or disposition of any debt securities of the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities of the Company will be made for a period of 90 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(l) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities Underwriters with reports it is required to file with the Commission under the Exchange Act.
(m) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of any UnderwriterDTC.
(n) The Company will use reasonable best efforts to effect the listing of the Notes on NASDAQ within 30 days of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Elm Capital Corp.), Underwriting Agreement (Great Elm Capital Corp.)
Agreements of the Company. The Company covenants and agrees with the several Underwriters thatInitial Purchasers as follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly To advise the Representative Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing of; (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or the institution or threatening initiation of any proceeding for such purposepurpose by any state securities commission or other regulatory authority; and (ii) the happening of any event that, in the reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, makes any statement of a material fact made in the Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The Company will shall use its best efforts to prevent the issuance of any such stop order or order suspending the occurrence qualification or exemption of any Securities 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 Securities under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such suspension order at the earliest possible time.
(b) 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 objection supplements thereto, as the Initial Purchasers may reasonably request. The Company consents to the use of the Registration Statement andPreliminary Offering Memorandum and the Offering Memorandum, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessaryand any amendments and supplements thereto required pursuant hereto, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, Initial Purchasers in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Ruleconnection with Exempt Resales.
(c) If, at any time prior Not 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 at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement the Disclosure Package Preliminary Offering Memorandum or the Offering Memorandum prior to correct such statement or omissionthe Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, and (iii) supply upon the Initial Purchasers' request, any amendment or supplement to you the Preliminary Offering Memorandum or the Offering Memorandum that may be necessary or advisable in such quantities as you may reasonably requestconnection with Exempt Resales.
(d) 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 Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Exempt Resale, 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 either counsel to state any material fact the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein therein, in the light of the circumstances under in which they were made made, not misleading, or if it shall be is necessary or advisable to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Preliminary Offering Memorandum or Offering Memorandum to comply with the Act or the Exchange Act or the respective rules thereunderapplicable law, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, Initial Purchasers and (ii) forthwith to prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an appropriate amendment or supplement to such Offering Memorandum so that the statements therein as so amended or new registration statement which supplemented will correct such statement or omission or effect such compliancenot, (iii) use its best efforts to have any amendment to in the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use light of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in circumstances when it is so delivered, be misleading, or so that such quantities as the Representative may reasonably requestOffering Memorandum will comply with applicable law.
(e) As soon as practicableTo cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Units, the Company will make generally available to its security holders Notes and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale Warrants under the securities or Blue Sky laws of such jurisdictions within the United States as the Representative Initial Purchasers may reasonably designate, will maintain request and 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 the Company shall not be obligated required in connection therewith to register or qualify to do business in any jurisdiction as a foreign corporation where it is not now so qualified or to take any action that would subject 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 it is not now so subject.
(if) The Company agrees thatWhether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, unless it has obtained or will obtainto pay all costs, as expenses, fees and taxes incident to the case may be, the prior written consent performance of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with obligations of the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectushereunder, including in respect of timely filing with the Commission, legending and record keeping.
connection with: (i) During the period beginning on the date hereof preparation, printing, filing and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate distribution of the Company or any person in privity with Preliminary Offering Memorandum and the Company or any affiliate of the Company), directly or indirectly, including the filing Offering Memorandum (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.without
Appears in 2 contracts
Samples: Purchase Agreement (Orbital Imaging Corp), Purchase Agreement (Orbital Imaging Corp)
Agreements of the Company. The Company agrees with the several Underwriters Dealer Managers that:
(a) Prior to the termination of the offering of the SecuritiesExpiration Date, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative Dealer Managers a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Dealer Managers reasonably object. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Dealer Managers with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative Dealer Managers of such timely filing. The Company will promptly advise the Representative Dealer Managers (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the SecuritiesRights Offering, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Rights and the Shares for offering or sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430A under the 1933 Act and will notify the Dealer Managers immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities and for offering or sale in any jurisdiction, or of the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file initiation or threatening of any proceedings for any of such term sheet purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the Rights Offering. The Company will promptly effect the filings required under Rule 433(d) 424 or such other rules as may be applicable to the Company in the manner and within the time period required by Rule 424 or such Ruleother rules, notify the Dealer Managers of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with the filing of the Final Prospectus pursuant to Rule 424(b)Rights Offering, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Dealer Managers or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended misleading or supplemented, (ii) to amend or supplement the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you Prospectus in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to order that the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall will be necessary necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, file a new registration statement or to amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5such amendment, an amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to comply with such compliancerequirements, provided that the Company shall not make any filing to which the Dealer Managers reasonably object, (iiiii) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus practicable, and (iviii) supply any supplemented Final Prospectus furnish to the Representative in Dealer Managers, without charge, such quantities number of copies of such amendment or supplement as the Representative Dealer Managers may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification Dealer Managers in endeavoring to qualify the Rights Offering and sale of the Securities for sale Shares under the securities laws of such jurisdictions within the United States as the Representative Dealer Managers may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation, to do business become subject to taxation as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Dealer Managers may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Dealer Managers during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in any jurisdiction where final form, or as thereafter amended or supplemented, as the Dealer Managers may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Dealer Managers in writing when such statement has been so subjectmade available.
(h) The Company will apply the net proceeds of the Rights Offering as set forth in the Registration Statement and the Prospectus.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make take, directly or indirectly, any offer relating action designed to the Securities that would constitute an Issuer Free Writing Prospectus cause or result in, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, constituted or might reasonably be expected toto constitute, result in the disposition stabilization or manipulation of the price of any securities of the Company to facilitate the issuance of the Rights or the sale or resale of the Shares, except as may be allowed by law.
(whether j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by actual disposition such act, rule or effective economic disposition due regulation. To the extent the distribution of Securities has been completed, the Company will not be required to cash provide the Dealer Managers with reports it is required to file with the Commission under the Exchange Act.
(k) The Company will cooperate with the Dealer Managers and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(l) The Company shall use its reasonable best efforts to submit the notice of listing of additional Shares to Nasdaq.
(m) The Company and the Adviser shall refrain from selling, offering to sell, contracting or otherwise) agreeing to sell, hypothecating, pledging, granting any option to purchase or otherwise disposing of or agreeing to dispose of, directly or indirectly, any Common Stock issued or guaranteed by the Company or any affiliate of securities convertible into or securities exchangeable or exercisable for Common Stock issued or guaranteed by the Company or any person in privity with warrants or other rights to purchase Common Stock issued or guaranteed by the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar filing or causing to be declared effective a registration statement under the Securities Act relating to the Preferred Stock, offer and sale of any Common Stock issued or any guaranteed by the Company or securities convertible into or exchangeable for Common Stock issued or guaranteed by the preferred stock Company or other rights to purchase Common Stock issued or guaranteed by the Company for a period from the date hereof to 45 days after the date hereof, without the prior written consent of the Dealer Managers, which may not be unreasonably withheld. The foregoing sentence shall not apply the sale of the Shares pursuant to the Rights Offering.
(n) The Company will advise or cause the Subscription Agent to advise the Dealer Managers as to the names and addresses (to the extent permitted by applicable law) of all Holders exercising Rights, the total number of Rights exercised by each Holder during the immediately preceding day, indicating the total number of Rights verified to be in proper form for exercise, rejected for exercise and being processed and, for each Dealer Manager, the number of Rights exercised on subscription certificates indicating such substantially similar securities Dealer Manager as the broker-dealer with respect to such exercise, and as to such other information as the Dealer Managers may reasonably request; and will notify the Dealer Managers in writing, not later than 5:00 P.M., New York City time, on the first business day following the Expiration Date, of the total number of Rights exercised and Shares related thereto, the total number of Rights verified to be in proper form for exercise, rejected for exercise and being processed and, for each Dealer Manager, the number of Rights exercised on subscription certificates indicating such Dealer Manager as the broker-dealer with respect to such exercise, and as to such other information as the Dealer Managers may reasonably request.
(o) None of the Company or, to the knowledge of the Company, except for the offering any of the Securities.
(j) The Company will comply with all applicable securities and other lawsits directors, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company employees or agents will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale Rights Offering. Without limiting the generality of the Securitiesforegoing, none of the Company or, to the knowledge of the Company, any of its directors, officers, employees or agents will take any action prohibited by Regulation M under the Exchange Act in connection with the Rights Offering.
(p) So long as the Rights are outstanding, the Company will furnish to you copies of all reports or other communications (financial or other) furnished to holders of the Rights, and copies of any reports and financial statements furnished to or filed with the Commission (collectively, the “Filings”), except for all such Filings filed by the Company with the Commission in electronic format on XXXXX.
(q) The Company will use its best efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code, provided, that the Board of Directors of the Company makes no agreement may change such election to be treated as a regulated investment company under Subchapter M of the Code in its sole discretion.
(r) The Company will apply the net proceeds from the Rights Offering in such a manner as to continue to comply in all material respects with the activities requirements of any Underwriterthe 1940 Act.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Great Elm Capital Corp.), Dealer Manager Agreement (Great Elm Capital Corp.)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or (including the Final Prospectus) to the Basic Prospectus unless the Company has furnished the Representative Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they the Representatives reasonably object. The Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, Prospectus to be mailed to the Commission for filing pursuant to Rule 424 by first class certified or registered mail or by overnight courier and any supplement thereto, will cause the Final Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingsaid Rule. The Company will promptly advise the Representative Representatives promptly (i) when the Final Prospectus, and any supplement thereto, Prospectus shall have been filed with mailed to the Commission for filing pursuant to Rule 424(b)424, (ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus or for any additional informationinformation relating to the Securities, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use described in clause (iv) of the Registration Statement preceding sentence and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheetcause or, containing solely a description of final terms of if appropriate, will have caused any Computational Materials and ABS Term Sheets (each as defined in Section 10 below) with respect to the Securities and which are delivered by the offering thereof, in Underwriters to the Company pursuant to or as contemplated by Section 10 to be filed with the Commission on a form acceptable to you Current Report on Form 8-K (the “Final Term Sheet”"Current Report") and to file such term sheet pursuant to Rule 433(d) within 13a-11 under the time required Exchange Act not later than, in each such case, the business day immediately following [the earlier of (i)] the day on which such Computational Materials are delivered to counsel for the Company by such Rule.
(c) If, at any time the Underwriters prior to 10:30 a.m., New York City time, [and (ii) the filing of date hereof,] and will promptly advise the Underwriters when each such Current Report has been so filed. Each such Current Report shall be incorporated by reference in the Final Prospectus and the Registration Statement. Notwithstanding the two preceding sentences, the Company shall have no obligation to file materials provided by the Underwriters pursuant to Rule 424(bor as contemplated by Section 10 which, in the reasonable determination of the Company after making reasonable efforts to consult with the Underwriters, are not required to be filed pursuant to the No-Action Letters (as defined in Section 10 below), any event occurs as a result of or which the Disclosure Package would include contain erroneous information or contain any untrue statement of a material fact or or, which, when read in conjunction with the Final Prospectus, omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading; it being understood, however, that the Company will (i) notify promptly shall have no obligation to review or pass upon the Representative so that accuracy or adequacy of, or to correct, any use of Computational Materials or ABS Term Sheets provided by the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement Underwriters to the Disclosure Package Company pursuant to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestSection 10 hereof.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, (iii) compliance and will use its best efforts to have cause any required post-effective amendment to the Registration Statement or new registration statement declared containing such amendment to be made effective as soon as practicable possible; provided, however, that the Company will not be required to file any such amendment or supplement with respect to any Computational Materials and/or ABS Term Sheets incorporated by reference in order to avoid any disruption in use of the Final Prospectus and (iv) supply other than any supplemented Final Prospectus amendments or supplements of such Computational Materials and/or ABS Term Sheets that are furnished to the Representative Company pursuant to Section 10(d) hereof which the Company determines to file in such quantities as the Representative may reasonably requestaccordance therewith.
(ed) As soon as practicable, the [The Company will make generally available to its security holders and to the Representative a consolidated Representatives as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries, which will satisfy (in form complying with the provisions of Section 11(aRule 158 of the regulations under the Act) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Act and Rule 158Registration Statement.]
(fe) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed executed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus relating to the Securities by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of any Preliminary Prospectus, Final Prospectus and the Final Prospectus and any Issuer Free Writing Prospectus amendments thereof and any supplement supplements thereto (other than exhibits to a Current Report) as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the initial offering of the Securities, provided that are required to any additional expenses incurred in connection with the requirement of delivery of a market-making prospectus will be prepared, furnished or delivered borne by the Company________________________.
(gf) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Banc of America Commercial Mortgage Inc), Underwriting Agreement (Banc of America Commercial Mortgage Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any shares of Preferred Stock or other securities convertible into or exchangeable or exercisable for shares of Preferred Stock or derivative of Preferred Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, directly or indirectly, by the Company agrees that, unless it has obtained otherwise than hereunder or will obtain, as the case may be, with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities has caused certain of its executive officers and other lawseach director of the Company to furnish to the Representative, rules and regulationson or prior to the date of this Agreement, includinga letter or letters, without limitationsubstantially in the form attached hereto as Exhibit C (the “Lockup Agreement”). During the Lock-Up Period (as defined in the Lockup Agreement), the Sarbanes Oxley Act Company will enforce all agreements between the Company and any of 2002its security holders that restrict or prohibit, and use its best efforts to cause the Company’s directors and officers, expressly or in their capacities as such, to comply with such laws, rules and regulations, including, without limitationoperation, the provisions offer, sale or transfer of the Sarbanes Oxley Act securities subject thereto or any of 2002the other actions restricted or prohibited under the terms thereof.
(k) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Preferred Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company has obtained an initial no agreement as to objections letter and the activities Underwriters will obtain a final no objection letter from FINRA regarding the fairness and reasonableness of any Underwriterthe underwriting terms and arrangements.
Appears in 2 contracts
Samples: Underwriting Agreement (Gladstone Capital Corp), Underwriting Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a1) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably objectobject in a timely manner. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, Prospectus and any supplement thereto, thereto shall have been filed with the Commission pursuant to Rule 424(b), ) or when any Rule 462(b) Registration Statement shall have been filed with the Commission; (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, ; (iii) 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, ; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose; and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c2) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package would include any an 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d3) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e4) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 (which, in each case, may be satisfied by filing with the Commission on its Electronic Data Gathering, Analysis and Retrieval system).
(f5) Upon request, the The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g6) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified or qualified; (ii) to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject; or (iii) to take any action that would subject it to taxation in any jurisdictions in which it is not now so subject.
(7) The Company will not, without the prior written consent of RBC Capital Markets, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock or shares of any class of common stock of the Company or any securities convertible into, or exercisable, or exchangeable for, any of the foregoing; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that the foregoing restrictions shall not apply to: (i) the Securities sold to the Underwriters hereunder; (ii) the issuance of shares of Common Stock upon the exercise of any options or warrants or the conversion of convertible securities disclosed as outstanding in the Registration Statement, the Disclosure Package and the Prospectus; (iii) the issuance of shares of Common Stock or securities that represent the right to receive shares of Common Stock, in each case pursuant to the Company’s equity incentive, stock incentive, stock option, employee stock purchase or dividend reinvestment plans of the Company described in the Registration Statement, the Disclosure Package and the Prospectus (collectively, the “Stock Plans”); (iv) the entry into an agreement providing for or the issuance by the Company of shares of Common Stock or securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock in connection with (a) the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, the issuance of any such securities pursuant to any such agreement and the filing of any registration statement on Form S-4 in connection with such agreement or (b) the Company’s joint ventures, commercial relationships and other strategic transactions; or (v) the filing of any registration statement on Form S-8 relating to securities granted or to be granted pursuant to the Stock Plans or any assumed employee benefit plan contemplated by clause (iv); provided, that the value of the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clause (iv) shall not exceed $100.0 million based upon the average of the daily volume-weighted average price of shares of Common Stock, as reported by Nasdaq over the 5-day period preceding any announcement of the acquisition or transaction, as applicable; and provided, further, that in the case of clause (iv), (A) each recipient of such securities shall execute and deliver to you, on or prior to the issuance of such securities, a lock-up agreement substantially to the effect set forth in Schedule IV hereto (and with the same expiration date) and (B) the Company shall enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the prior written consent of RBC Capital Markets, LLC. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representative waives in writing such extension. The Company shall promptly notify the Representative of any earnings release, news or event that may give rise to an extension of the initial 90-day restricted period.
(8) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(9) The Company agrees to pay the costs and expenses, except for those expenses to be paid by certain Selling Stockholders as set forth in Section 5(b)(4) below, relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the transfer, issuance and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon; (iv) the printing and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters and the Selling Stockholders relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters and the Selling Stockholders, or any other necessary counsel with respect to state securities law matters, relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the reasonable fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (x) all other costs and expenses incident to the performance by the Company and the Selling Stockholders of their respective obligations hereunder, including maintaining the effectiveness of the Registration Statement. All of the expenses described in the preceding sentence are referred to herein as “Registration Expenses.” Notwithstanding the foregoing or anything contained herein to the contrary, it is understood that (i) except as provided in this Section 5(a)(9), Section 7 and Section 8, the Underwriters shall pay all of their own costs and expenses, including fees and disbursements of their counsel, and all travel, lodging and other expenses of the Underwriters or any of their employees incurred by them in connection with any presentations to prospective purchasers of the Securities, (ii) the Company shall pay any liability insurance or other premiums for insurance it obtains in connection with this offering, regardless of whether the Registration Statement is declared effective and (iii) the Company will pay the expenses of printing or other production of all documents requested from the Company by the Underwriters relating to the offering not described above. The provisions of this Section 5(a)(9) and Section 5(b)(4) below shall not supersede or otherwise affect any agreement that the Selling Stockholders and the Company may otherwise have for the allocation of such expenses among themselves.
(10) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule III hereto and the offering thereofany electronic road show. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Hicks, Muse, Tate & Furst Equity Fund Iii, L.P.), Underwriting Agreement (Hemisphere Media Group, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, the Company will not file any amendment of to the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) 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 or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of the SecuritiesOffering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.. Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented, ; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission, ; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 in order 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, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, which subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be preparedOffering. Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, furnished or delivered by the Company.Inc. [●], 2021
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any preferred securitiesother Units, any preferred stock or any other securities of the CompanyClass A Ordinary Shares, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Warrants or any securities convertible into into, or exercisable, or exchangeable for for, Class A Ordinary Shares or publicly announce an intention to effect any such transaction during the preferred stock or such substantially similar securities period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the Companyoption provided for in Section 2 hereof, except for (3) issue and sell the offering Forward Purchase Shares and the Forward Purchase Warrants, (4) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the SecuritiesRegistration Rights Agreement, the resale of the securities covered thereby and (5) issue securities in connection with a Business Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth in Section 5(b) of the Insider Letters.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(ki) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that .
(j) The Company agrees to pay the Company makes no agreement as costs and expenses relating to the activities following matters; (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any Underwriter.of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
Appears in 2 contracts
Samples: Underwriting Agreement (Austerlitz Acquisition Corp I), Underwriting Agreement (Austerlitz Acquisition Corp I)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for (1) the offering of the SecuritiesSecurities and (2) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Citigroup Inc), Underwriting Agreement (Citigroup Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430A under the 1933 Act and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering thereofof the Securities. The Company will promptly effect the filings required under Rule 497, in a form acceptable to you (the “Final Term Sheet”) manner and to file such term sheet pursuant to Rule 433(d) within the time period required by Rule 497, notify the Representative of the filing thereof, and take such Rulesteps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to the filing be delivered in connection with sales of the Final Prospectus pursuant to Rule 424(b)Securities, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended misleading or supplemented, (ii) to amend or supplement the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you Prospectus in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to order that the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall will be necessary necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, file a new registration statement or to amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5such amendment, an amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to comply with such compliancerequirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (iiiii) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus practicable, and (iviii) supply any supplemented Final Prospectus furnish to the Representative in Representative, without charge, such quantities number of copies of such amendment or supplement as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation, to do business become subject to taxation as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of the Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, pledge, sale, contract to sell, grant of any option for the sale of, or other transfer or disposition of any debt securities of the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities of the Company will be made for a period of 90 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(l) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities Underwriters with reports it is required to file with the Commission under the Exchange Act.
(m) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of any UnderwriterDTC.
(n) The Company will use reasonable best efforts to effect the listing of the Notes on NASDAQ within 30 days of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Elm Capital Corp.), Underwriting Agreement (Great Elm Capital Corp.)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the Act and (v) of the receipt by the Company 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 will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event there occurs as a an event, the result of which which, in the opinion of counsel for the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) subject to paragraph (a) of this Section 6, amend or supplement the Disclosure Package to eliminate or correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event there occurs as a an event, the result of which which, in the Final opinion of counsel for the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement that will eliminate or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(d) [Reserved].
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(g) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gh) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject themselves to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(i) [Reserved].
(j) [Reserved].
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (iv) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(h) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (v) the approval of the Securities for book entry transfer by DTC; (vi) any filings required to be made with the FINRA (including filing fees, fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $35,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (viii) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and one counsel for the Selling Stockholders and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (l) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”). Each Selling Stockholder agrees with the Underwriters to pay (directly or by reimbursement) all fees and expenses incident to the performance of such Selling Stockholder’s obligations under this Agreement with respect to stock transfer taxes, stamp duties and other similar taxes incident to the sale and delivery of the Securities to be sold by such Selling Stockholder to the Underwriters hereunder. This Section 6(l) shall not affect or modify any separate, valid agreement relating to the allocation of payment of expenses between the Company, on the one hand, and any Selling Stockholder, on the other hand.
(m) [Reserved].
(n) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the offering thereofRepresentative before first use. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (i) During and will promptly notify the Company if any such proceeding against it is initiated during the period beginning on a prospectus is required by the date hereof and continuing Act to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition delivered (whether by actual disposition physically or effective economic disposition due to cash settlement or otherwise) by through compliance with Rule 172 under the Company Act or any affiliate similar rule) in connection with any sale of the Company or any person in privity with the Company or any affiliate of the CompanySecurities), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters Agent that:
(a) Prior The Company, subject to Section 6(a)(ii), will comply with the termination requirements of the offering of the SecuritiesRule 424, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause notify the Final ProspectusAgent as soon as practicable, properly completedand, and any supplement theretoin the cases of Sections 6(a)(ii)-(iv), to be filed confirm the notice in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative writing, (i) when, at any time when a prospectus relating to the Final ProspectusShares is required to be delivered under the 1933 Act, and or any supplement thereto, to the Prospectus or any amended Prospectus shall have been filed with in relation to the Commission pursuant to Rule 424(b)Shares, (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment Commission relating to the Registration Statement shall have been filed or become effectiveStatement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional informationinformation in each case in relation to the Shares, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Prospectus, or of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement pursuant to Section 8(d) of the 1933 Act, and, upon if any such issuance, occurrence or notice of objectionstop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablemoment.
(b) The To the extent it relates to the offering of the Shares hereunder, the Company will give the Agent notice of its intention to file or prepare any amendment to the Registration Statement, or any supplement or revision to either the Base Prospectus included in the Registration Statement when it most recently became effective or to the Prospectus Supplement, and will furnish the Agent with copies of any such documents a final term sheetreasonable amount of time prior to such proposed filing or use, containing solely a description of final terms as the case may be, and will, in good faith, consider any reasonable comments of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleAgent or Agent’s counsel.
(c) If, at any time prior when a prospectus relating to the filing of Shares is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus as then amended or 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, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the 1933 Act or the Exchange Act or Act, in each case in relation to the respective rules thereunder, Shares including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Agent of any such eventevent so that any use of the Prospectus may cease or be suspended until it is amended or supplemented or it otherwise complies with the 1933 Act or the Exchange Act, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and sale of Shares and (iv) supply any supplemented Final Prospectus to the Representative Agent in such quantities as the Representative Agent may reasonably request.
(ed) As soon as practicablepracticable after furnishing with the Commission, the Company will make generally available to its security holders and to the Representative a consolidated Agent an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative and counsel for the UnderwritersAgent, without charge, signed 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 the Agent or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)1933 Act, as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Agent may reasonably request. The Except as otherwise described herein, the Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such states and jurisdictions within the United States as the Representative Agent may reasonably designate, designate and the Company agrees to and will maintain such qualifications in effect so long as required for to complete the distribution and sale of the SecuritiesShares; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, as use the case may be, Net Proceeds in the prior written consent manner specified in the Prospectus under “Use of the Representative, and Proceeds.”
(iih) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the The Company, it has not made and during the period when the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, 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” (as defined in Rule 405) file all documents required to be filed by the Company with the Commission or retained pursuant to the 1940 Act and the Exchange Act within the time periods required by the Company under Rule 433, other than 1940 Act and the Final Term Sheet described above or other free writing prospectuses containing solely a description Exchange Act and the rules and regulations of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treatCommission thereunder, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingrespectively.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause maintain its qualification as a regulated investment company under Subchapter M of the Company’s Code provided, however, the Company may change the nature of its business so as to cease to be, or to withdraw its election as, a business development company, with the approval of the board of directors and officers, in their capacities a vote of stockholders as such, to comply with such laws, rules and regulations, including, without limitation, the provisions required by Section 58 of the Sarbanes Oxley 1940 Act of 2002or any successor provision.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares, except as may be allowed by law.
(k) In connection with the offering and sale of the Shares, the Company will file with Nasdaq all documents and notices, and make all certifications, required of companies that have securities that are listed on Nasdaq and will maintain such listing.
(l) The Company will cooperate with any reasonable due diligence review conducted by the Agent (or its counsel or other representatives), including, without limitation, providing information and making available documents and senior corporate officers, as the Agent may reasonably request; provided, however, that the Company makes no agreement shall be required to make available documents and senior corporate officers only (i) at the Company’s principal offices and (ii) during the Company’s ordinary business hours. The parties acknowledge that the due diligence review contemplated by this Section 6(l) will include, without limitation, during the term of this Agreement a quarterly diligence conference to occur within five Business Days after each Quarterly Filing (unless otherwise determined by the Company and the Agent) whereby the Company will make its senior corporate officers available to address certain diligence inquiries of the Agent and will provide such additional information and documents as the Agent may reasonably request.
(m) The Company agrees that on such dates as the Exchange Act shall require, the Company will include in a filed annual report on Form 10-K or quarterly report on Form 10-Q the amount of Shares sold through the Agent, the Net Proceeds to the activities Company and the compensation payable by the Company to the Agent with respect to such Shares for such annual or quarterly period, as applicable.
(n) Upon the commencement of the offering of Shares under this Agreement and each time the Company files a Quarterly Filing or a Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares by means of a post-effective amendment or supplement (each such event shall be deemed a “Representation Date”), the Company and the Adviser shall each furnish the Agent with a certificate, in the form attached hereto as Exhibit 6(n). The requirement to provide a certificate under this Section 6(n) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with a certificate under this Section 6(n), then before the Agent resumes sales of any UnderwriterShares, the Company shall provide the Agent with a certificate, in the form attached hereto as Exhibit 6(n).
(o) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after each Representation Date, the Company shall cause to be furnished to the Agent a written opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Company, the Adviser and the Administrator (the “Company Counsel”), dated the commencement of the offering of Shares hereunder or the Representation Date, as applicable, in form and substance reasonably satisfactory to the Agent but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, Company Counsel may furnish the Agent with a letter to the effect that the Agent may rely on prior opinions delivered under this Section 6(o) to the same extent as if they were dated the date of such letter (except that statements in such prior opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). Notwithstanding the foregoing, the requirement to provide such opinion shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with opinion from Company Counsel under this Section 6(o), then before the Agent resumes sales of any Shares, the Company shall cause to be furnished to the Agent the opinion of Company Counsel contemplated in this Section 6(o).
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters thatInitial Purchaser as follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable furnish to the Representative with the Commission pursuant to the applicable paragraph Initial Purchaser, without charge, such number of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination copies of the offering of Offering Memorandum as the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicableInitial Purchaser may reasonably request.
(b) The Company will prepare a final term sheetnot make any amendment or supplement to the Preliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which the Initial Purchaser shall reasonably object after being so advised, containing solely a description including by way of final terms of filing any document with the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required Commission that would be incorporated therein by such Rulereference.
(c) Prior to the execution and delivery of this Agreement, the Company shall have delivered or will deliver to the Initial Purchaser, without charge, in such quantities as the Initial Purchaser shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Senior Notes are offered by the Initial Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Senior Notes are offered by the Initial Purchaser and by all dealers to whom Senior Notes may be sold, in connection with the offering and sale of the Senior Notes.
(d) If, at any time prior to the filing completion of the Final Prospectus pursuant distribution of the Senior Notes by the Initial Purchaser to Rule 424(b)Eligible Purchasers, any event occurs as a result shall occur that in the judgment of which the Disclosure Package would include any untrue statement Company, or in the opinion of a material fact or omit to state any material fact necessary counsel for the Initial Purchaser, should be set forth in the Offering Memorandum in order to make the statements therein therein, in the light of the circumstances under which they were made at such time not misleadingmade, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be is necessary to supplement or amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Offering Memorandum in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusany law, the Company will (i) notify promptly the Representative of such eventforthwith prepare an appropriate supplement or amendment thereto, (ii) prepare and file with the Commission, subject will expeditiously furnish to the second sentence Initial Purchaser and dealers a reasonable number of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestcopies thereof.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay cooperate with the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for Initial Purchaser and with its counsel in connection with the qualification of the Securities Senior Notes for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions within the United States as the Representative Initial Purchaser may reasonably designatedesignate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification; provided, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesSenior Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchaser (i) The Company agrees thatas soon as available, unless it has obtained or will obtain, as the case may be, the prior written consent a copy of each report of the Representative, Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) each Underwriter, severally from time to time such other information concerning the Company as the Initial Purchaser may reasonably request.
(g) If this Agreement shall terminate or shall be terminated after execution and not jointly, agrees delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchaser terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchaser because of any failure or refusal on the part of the Company to comply with the Company that, unless it has obtained terms or will obtain, as fulfill any of the case may beconditions of this Agreement, the prior written consent Company agrees to reimburse the Initial Purchaser for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company, it has not made and Company for loss of profits or otherwise.
(h) The Company will not make any offer relating to apply the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required net proceeds from the sale of the Senior Notes to be filed sold by the Company it hereunder substantially in accordance with the Commission or retained by description set forth in the Company Offering Memorandum under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description caption "Use of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing ProspectusProceeds.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping."
(i) During Except as stated in this Agreement and in the period beginning on the date hereof Preliminary Offering Memorandum and continuing to and including the Closing DateOffering Memorandum, the Company has not taken, nor will not, without the prior written consent any of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not them take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company Senior Notes to facilitate the sale or resale of the SecuritiesSenior Notes. Except as permitted by the Act, except that the Company makes no agreement will not distribute any offering material in connection with the Exempt Resales.
(j) The Company will use its best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information (the "Additional Company Information") required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Notes.
(l) The Company has complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(m) The Company agrees 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 Senior Notes in a manner that would require the registration under the Act of the sale to the activities Initial Purchaser or the Eligible Purchasers of the Senior Notes.
(n) The Company agrees 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 to DTC relating to the approval of the Notes by DTC for "book entry" transfer.
(o) The Company agrees to cause the Exchange Offer to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes to be offered in exchange for the Senior Notes, and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company agrees that prior to any registration of the Senior Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(q) The Company will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any Underwriterusury laws against holders of the Notes.
(r) The Company will 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 Initial Purchaser's obligations hereunder to purchase the Senior Notes.
Appears in 2 contracts
Samples: Purchase Agreement (Adelphia Communications Corp), Purchase Agreement (Adelphia Communications Corp)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement theretoin a form approved by the Representatives, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within under the time period prescribed Act and will provide evidence satisfactory to notify the Representative Representatives promptly of such timely filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Bonds and of the offering, in the form attached as Schedule III hereto, will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Representatives with copies thereof, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and Issuer Free Writing Prospectus, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Bonds for offering or sale in any jurisdiction or jurisdiction, (vi) of the institution initiation or threatening of any proceeding or examination for any such purpose. The Company will use its best efforts to prevent the issuance , and (vii) of any such stop order request by the Commission for the amending or the occurrence of any such suspension or objection to the use supplementing of the Registration Statement andStatement, upon such issuanceany Preliminary Prospectus, occurrence the Prospectus or notice of objectionany Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an Company will not file (i) any amendment to the Registration Statement or supplement to the Prospectus (excluding documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Representatives a new registration statement copy for your review prior to filing and using will not file any such proposed amendment or supplement to which the Representatives reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will consult with the Representatives as to any comments which the Representatives make in a timely manner with respect to such document. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds. Following the Closing Date and, for long as a prospectus relating to the Bonds is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to have obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Bonds by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Representatives may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representatives and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Representatives may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions within in the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesBonds; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeRepresentatives, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesRepresentatives.
(j) The In connection with the offering of the Bonds, until the Underwriters shall have notified the Company and the other Underwriters of the completion of the sale of the Bonds, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Bonds.
(k) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterBonds.
Appears in 2 contracts
Samples: Underwriting Agreement (Northern States Power Co /Wi/), Underwriting Agreement (Public Service Co of Colorado)
Agreements of the Company. The Company agrees with the several Underwriters ------------------------- Underwriter that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or (including the Final Prospectus) to the Basic Prospectus unless the Company has furnished the Representative Underwriter a copy for their its review prior to filing and will not file any such proposed amendment or supplement to which they the Underwriter reasonably objectobjects. The Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, Prospectus to be submitted to the Commission for filing pursuant to Rule 424 and any supplement thereto, will cause the Final Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingsaid Rule. The Company will promptly advise the Representative Underwriter promptly (i) when the Final Prospectus, and any supplement thereto, Prospectus shall have been filed with submitted to the Commission for filing pursuant to Rule 424(b)424, (ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus or for any additional informationinformation relating to the Securities, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use described in clause (iv) of the Registration Statement preceding sentence and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheetcause or, containing solely a description of final terms of if appropriate, will have caused any Computational Materials, Collateral Term Sheets and ABS Term Sheets (each as defined in Section 10 below) with respect to the Securities and which are delivered by the offering thereof, in Underwriter to the Company pursuant to or as contemplated by Section 10 to be filed with the Commission on a form acceptable to you Current Report on Form 8-K (the “Final Term Sheet”"Current Report") and to file such term sheet pursuant to Rule 433(d) within 13a-11 under the time -------------- Exchange Act not later than, in each such case, the business day immediately following the day on which such Computational Materials, Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the Company by the Underwriter as provided in Section 10, and will promptly advise the Underwriter when each such Current Report has been so filed. Notwithstanding the preceding sentences, the Company shall have no obligation to file materials provided by the Underwriter pursuant to or as contemplated by Section 10 which, in the reasonable determination of the Company after making reasonable efforts to consult with the Underwriter, are not required by such Rule.
(c) If, at any time prior to be filed pursuant to the filing of the Final Prospectus pursuant to Rule 424(bNo-Action Letters (as defined in Section 10 below), any event occurs as a result of or which the Disclosure Package would include contain erroneous information or contain any untrue statement of a material fact or or, which, when read in conjunction with the Final Prospectus, omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading; it being understood, however, that the Company will (i) notify promptly shall have no obligation to review or pass upon the Representative so that accuracy or adequacy of, or to correct, any use of Computational Materials, Collateral Term Sheets or ABS Term Sheets provided by the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement Underwriter to the Disclosure Package Company pursuant to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities as you may reasonably requestSection 10 hereof.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, (iii) compliance and will use its best efforts to have cause any required post- effective amendment to the Registration Statement or new registration statement declared containing such amendment to be made effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestpossible.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the The Company will furnish to the Representative Underwriter and counsel for the UnderwritersUnderwriter, without charge, signed executed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus relating to the Securities by an the Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of any Preliminary Prospectus, Final Prospectus and the Final Prospectus and any Issuer Free Writing Prospectus amendments thereof and any supplement supplements thereto as the Representative Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the initial offering of the Securities, provided that are required to any additional expenses incurred in connection with the requirement of delivery of a market-making prospectus will be prepared, furnished or delivered borne by the CompanyUnderwriter.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Underwriter may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated -------- ------- required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Nations Mortgage Securities Corp), Underwriting Agreement (Ba Mortgage Securities Inc/)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of to the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a the form acceptable approved by the Representatives and referred to you (the “Final Term Sheet”) in Schedule IV hereto and to will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 55(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As Upon the request by the Underwriters, as soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158; provided, however, that this covenant will be deemed satisfied as long as the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act and has filed its report or reports on Form 10-K, Form 10-Q or Form 8-K, or has supplied to the Commission copies of the annual report sent to security holders pursuant to Rule 14a-3(c) of the Exchange Act, containing such earning statement or statements.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by of the CompanySecurities.
(g) The Company will arrange, if necessary, shall cooperate with the Representatives and counsel for the qualification of Underwriters to qualify or register the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such jurisdictions within the United States as the Representative may reasonably designate, will laws and shall maintain such qualifications qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities; provided that in no event . The Company shall the Company not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified transact business, or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securitiesprocess, in any such jurisdiction where it is not now so subjectpresently qualified or where it would be subject to taxation as a foreign business.
(i) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, as the case may be, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other a free writing prospectuses prospectus containing solely a description the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided, however, that the prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities and the offering thereofFree Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock debt securities issued or any guaranteed by the Company (other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company will pay all costs, except that fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation, (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer, stamp and other similar taxes in connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, any Preliminary Prospectus and the Final Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture and the Securities, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company makes no agreement as or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, and advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incurred and the reasonable fees and disbursements of counsel to the activities Underwriters in connection with any filing with, and the review and clearance of the terms of the sale of the Securities by, the Financial Industry Regulatory Authority, Inc., (vii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (viii) any Underwriterfees payable in connection with the rating of the Securities with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for “book-entry” transfer, and (x) all other fees, costs and expenses incurred by the Company in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section 5(k). Except as provided in this Section 5(k) and in Section 8 and Section 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
Appears in 2 contracts
Samples: Underwriting Agreement (SNAP-ON Inc), Underwriting Agreement (SNAP-ON Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any shares of Common Stock or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, directly or indirectly, by the Company agrees that, unless it has obtained otherwise than hereunder or will obtain, as the case may be, with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities has caused certain of its executive officers and other lawseach director of the Company to furnish to the Representative, rules and regulationson or prior to the date of this Agreement, includinga letter or letters, without limitationsubstantially in the form attached hereto as Exhibit C (the “Lockup Agreement”). During the Lock-Up Period (as defined in the Lockup Agreement), the Sarbanes Oxley Act Company will enforce all agreements between the Company and any of 2002its security holders that restrict or prohibit, and use its best efforts to cause the Company’s directors and officers, expressly or in their capacities as such, to comply with such laws, rules and regulations, including, without limitationoperation, the provisions offer, sale or transfer of the Sarbanes Oxley Act securities subject thereto or any of 2002the other actions restricted or prohibited under the terms thereof.
(k) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company has obtained an initial no agreement as to objections letter and the activities Underwriters will obtain a final no objection letter from FINRA regarding the fairness and reasonableness of any Underwriterthe underwriting terms and arrangements.
Appears in 2 contracts
Samples: Underwriting Agreement (Gladstone Investment Corporation\de), Underwriting Agreement (Gladstone Capital Corp)
Agreements of the Company. The Company agrees with the several Underwriters Agent that:
(a) Prior The Company, subject to Section 6(a)(ii), will comply with the termination requirements of the offering of the SecuritiesRule 497, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause notify the Final ProspectusAgent as soon as practicable, properly completedand, and any supplement theretoin the cases of Sections 6(a)(ii)-(iv), to be filed confirm the notice in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative writing, (i) when, at any time when a prospectus relating to the Final ProspectusShares is required to be delivered under the 1933 Act, and or any supplement thereto, to the Prospectus or any amended Prospectus shall have been filed with in relation to the Commission pursuant to Rule 424(b)Shares, (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment Commission relating to the Registration Statement shall have been filed or become effectiveStatement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional informationinformation in each case in relation to the Shares, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Prospectus, or of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts promptly effect the filings necessary pursuant to Rule 497 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement pursuant to Section 8(d) of the 1933 Act, and, upon if any such issuance, occurrence or notice of objectionstop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablemoment.
(b) The To the extent it relates to the offering of the Shares hereunder, the Company will give the Agent notice of its intention to file or prepare any amendment to the Registration Statement, or any supplement or revision to either the Base Prospectus included in the Registration Statement when it most recently became effective or to the Prospectus Supplement, and will furnish the Agent with copies of any such documents a final term sheetreasonable amount of time prior to such proposed filing or use, containing solely a description of final terms as the case may be, and will, in good faith, consider any reasonable comments of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleAgent or Agent’s counsel.
(c) If, at any time prior when a prospectus relating to the filing of Shares is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus as then amended or 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, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the 1933 Act or the Exchange Act or Act, in each case in relation to the respective rules thereunder, Shares including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Agent of any such eventevent so that any use of the Prospectus may cease or be suspended until it is amended or supplemented or it otherwise complies with the 1933 Act or the Exchange Act, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and sale of Shares and (iv) supply any supplemented Final Prospectus to the Representative Agent in such quantities as the Representative Agent may reasonably request.
(ed) As soon as practicablepracticable after furnishing with the Commission, the Company will make generally available to its security holders and to the Representative a consolidated Agent an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative and counsel for the UnderwritersAgent, without charge, signed 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 the Agent or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)1933 Act, as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Agent may reasonably request. The Except as otherwise described herein, the Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such states and jurisdictions within the United States as the Representative Agent may reasonably designate, designate and the Company agrees to and will maintain such qualifications in effect so long as required for to complete the distribution and sale of the SecuritiesShares; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, as use the case may be, Net Proceeds in the prior written consent manner specified in the Prospectus under “Use of the Representative, and Proceeds.”
(iih) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the The Company, it has not made and during the period when the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, 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” (as defined in Rule 405) file all documents required to be filed by the Company with the Commission or retained pursuant to the 1940 Act and the Exchange Act within the time periods required by the Company under Rule 433, other than 1940 Act and the Final Term Sheet described above or other free writing prospectuses containing solely a description Exchange Act and the rules and regulations of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treatCommission thereunder, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingrespectively.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause maintain its qualification as a regulated investment company under Subchapter M of the Company’s Code provided, however, the Company may change the nature of its business so as to cease to be, or to withdraw its election as, a business development company, with the approval of the board of directors and officers, in their capacities a vote of stockholders as such, to comply with such laws, rules and regulations, including, without limitation, the provisions required by Section 58 of the Sarbanes Oxley 1940 Act of 2002or any successor provision.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares, except as may be allowed by law.
(k) In connection with the offering and sale of the Shares, the Company will file with Nasdaq all documents and notices, and make all certifications, required of companies that have securities that are listed on Nasdaq and will maintain such listing.
(l) The Company will cooperate with any reasonable due diligence review conducted by the Agent (or its counsel or other representatives), including, without limitation, providing information and making available documents and senior corporate officers, as the Agent may reasonably request; provided, however, that the Company makes no agreement shall be required to make available documents and senior corporate officers only (i) at the Company’s principal offices and (ii) during the Company’s ordinary business hours. The parties acknowledge that the due diligence review contemplated by this Section 6(l) will include, without limitation, during the term of this Agreement a quarterly diligence conference to occur within five Business Days after each Quarterly Filing (unless otherwise determined by the Company and the Agent) whereby the Company will make its senior corporate officers available to address certain diligence inquiries of the Agent and will provide such additional information and documents as the Agent may reasonably request.
(m) The Company agrees that on such dates as the Exchange Act shall require, the Company will include in a filed annual report on Form 10-K or quarterly report on Form 10-Q the amount of Shares sold through the Agent, the Net Proceeds to the activities Company and the compensation payable by the Company to the Agent with respect to such Shares for such annual or quarterly period, as applicable.
(n) Upon the commencement of the offering of Shares under this Agreement, each time the Shares are delivered to an Agent as principal on a Settlement Date pursuant to a Terms Agreement and each time the Company files a Quarterly Filing or a Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares by means of a post-effective amendment or supplement (each such event shall be deemed a “Representation Date”), the Company and the Adviser shall each furnish the Agent with a certificate, in the form attached hereto as Exhibit 6(n). The requirement to provide a certificate under this Section 6(n) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with a certificate under this Section 6(n), then before the Agent resumes sales of any UnderwriterShares, the Company shall provide the Agent with a certificate, in the form attached hereto as Exhibit 6(n).
(o) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after each Representation Date, the Company shall cause to be furnished to the Agent a written opinion of Proskauer Rose LLP, counsel for the Company, the Adviser and the Administrator (the “Company Counsel”), dated the commencement of the offering of Shares hereunder or the Representation Date, as applicable, in form and substance reasonably satisfactory to the Agent but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, Company Counsel may furnish the Agent with a letter to the effect that the Agent may rely on prior opinions delivered under this Section 6(o) to the same extent as if they were dated the date of such letter (except that statements in such prior opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). Notwithstanding the foregoing, the requirement to provide such opinion shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with opinion from Company Counsel under this Section 6(o), then before the Agent resumes sales of any Shares, the Company shall cause to be furnished to the Agent the opinion of Company Counsel contemplated in this Section 6(o).
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior The Company will cause the Prospectus, in a form approved by the Representatives, to be filed pursuant to Rule 424(b) under the Act and will notify the Representatives promptly of such filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Notes and of the offering, in the form attached as Schedule II hereto, will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the termination Notes is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representatives (i) when any amendment to the Registration Statement has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and (iv) of the offering issuance by the Commission of any stop order or of any order preventing or suspending the use of the SecuritiesRegistration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, (vi) of the initiation or threatening of any proceeding or examination for any such purpose, and (vii) of any request by the Commission for the amending or supplementing of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Notes is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will not file (i) any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or (excluding documents deemed to be incorporated by reference into the Final Prospectus Prospectus) unless the Company has furnished to the Representative Representatives a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they the Representatives reasonably object. The object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will cause consult with the Final ProspectusRepresentatives as to any comments which the Representatives make in a timely manner with respect to such document. During the period for which a prospectus relating to the Notes is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), properly completed, the Company will promptly file all reports and any supplement thereto, definitive proxy or information statements required to be filed in a form acceptable to by the Representative Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory Exchange Act subsequent to the Representative date of such timely filingthe Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes. The Following the Closing Date and for so long as a prospectus relating to the Notes is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly advise use its best efforts to obtain the Representative (i) when withdrawal of such order. In the Final Prospectus, and event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any supplement post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Notes by the Underwriters (and references herein to the “Registration Statement” shall have been filed with include any such amendment or new registration statement).
(b) If required by Rule 430B(h) under the Commission Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b), ) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof.
(iic) when, prior to termination If by the third anniversary (the “Renewal Deadline”) of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment initial effective date of the Registration Statement, or for any supplement of the Notes remain unsold by the Underwriters, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Final Prospectus or for any additional informationNotes, (iv) of in a form satisfactory to you. If at the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by Renewal Deadline the Company of any notification with respect is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the suspension of Notes, in a form satisfactory to you and will use its best efforts to cause such registration statement to be declared effective within 180 days after the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeRenewal Deadline. The Company will use its best efforts to prevent take all other action necessary or appropriate to permit the issuance public offering and sale of any such stop order or the occurrence of any such suspension or objection Notes to continue as contemplated in the expired registration statement relating to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment Notes. References herein to the Registration Statement or a shall include such new automatic shelf registration statement and using its best efforts to have or such amendment or new shelf registration statement declared effective statement, as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package case 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 requestbe.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(f) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), all amendments of and supplements to such documents, in each case as many copies of any Preliminary Prospectus, the Final Prospectus soon as available and any Issuer Free Writing Prospectus and any supplement thereto in such quantities as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(h) The Company will arrangepromptly file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act and will retain as and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if necessaryfor any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, for the qualification Company will notify the Representatives and, upon their request, file such document and prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(i) The Company will furnish such information, execute such instruments and take such action as may be required to qualify the Securities Notes for sale under the laws of such jurisdictions within in the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesNotes; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ij) The Company agrees that, unless it has obtained or will obtain, So long as the case may beNotes are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeRepresentatives, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(ik) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of which consent shall not be unreasonably withheld.
(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 otherwisel) by the Company or any affiliate of the Company or any person in privity In connection with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Notes, until the Representatives shall have notified the Company and the other Underwriters of the completion of the sale of the Notes, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Notes or attempt to induce any person to purchase any Notes or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Notes.
(km) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterNotes.
Appears in 2 contracts
Samples: Underwriting Agreement (Xcel Energy Inc), Underwriting Agreement (Xcel Energy Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430A under the 1933 Act and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering thereofof the Securities. The Company will promptly effect the filings required under Rule 497, in a form acceptable to you (the “Final Term Sheet”) manner and to file such term sheet pursuant to Rule 433(d) within the time period required by Rule 497, notify the Representative of the filing thereof, and take such Rulesteps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to the filing be delivered in connection with sales of the Final Prospectus pursuant to Rule 424(b)Securities, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended misleading or supplemented, (ii) to amend or supplement the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you Prospectus in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to order that the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall will be necessary necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, file a new registration statement or to amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5such amendment, an amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to comply with such compliancerequirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (iiiii) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus practicable, and (iviii) supply any supplemented Final Prospectus furnish to the Representative in Representative, without charge, such quantities number of copies of such amendment or supplement as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, pledge, sale, contract to sell, grant of any option for the sale of, or other transfer or disposition of any debt securities of the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities of the Company will be made for a period of 90 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(jk) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(km) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of any UnderwriterDTC.
(p) The Company will use reasonable best efforts to effect the listing of the Notes on NASDAQ within 30 days of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Elm Capital Corp.), Underwriting Agreement (Great Elm Capital Corp.)
Agreements of the Company. The Company hereby agrees with the several Underwriters -------------------------------------- Agent that:
(a) Prior to the termination of the offering of the Securities, the The Company will not file any amendment of use its best efforts to cause the Registration Statement or supplement to any Preliminary Prospectus or be declared effective by the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably objectSEC. The Company will cause notify the Final Prospectus, properly completed, Agent immediately and any supplement thereto, to be filed confirm the notice in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative writing thereto (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by or the Commission receipt of any comments from the SEC with respect to the transactions contemplated by this Agreement; (ii) of any request by or its staff any comments or other communications received from the SEC and any request by the SEC for any amendment of or supplement to the Registration StatementStatement or the Prospectus, or for any supplement additional information with respect to the Final Prospectus transactions contemplated therein or for any additional information, by the Offering; and (iviii) of the issuance by the Commission SEC or any court or governmental agency or body of any stop order or other order suspending or enjoining the effectiveness or approval of the Registration Statement Statement, the Prospectus or the Offering or of the institution of any proceedings for that purpose or of any notice objecting to its use notification of the suspension of qualification of the Shares in any jurisdiction or the institution initiation or threatening of any proceeding for that purpose and (v) of or the receipt by the Company threat 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 purposeaction. The Company will use its best efforts make every reasonable effort to prevent the issuance by the SEC and any court or governmental agency or body of any such stop order or other such order, or request for amendment or additional information or the occurrence commencement of any such suspension or objection to the use of the Registration Statement proceeding and, upon if any such issuanceorder, occurrence request or notice of objectionproceeding shall at any time be issued or commenced, to obtain as soon as the lifting thereof, to respond thereto or to obtain the termination thereof at the earliest possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablemoment.
(b) The Company will prepare a final term sheetdeliver to the Agent, containing solely a description without charge, from time to time such number of final terms copies of the Securities Prospectus and related documents (as amended or supplemented), as the offering thereofAgent may reasonably request. The Company authorizes the Agent, subject to all requirements of applicable law, to use the Prospectus (as the same may be amended or supplemented) in a form acceptable to you (connection with the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within sale of the time required by such RuleShares.
(c) The Company will deliver to the Agent at least two complete copies (including exhibits) of its Registration Statement on Form SB-2 as originally filed with the SEC and of each amendment thereto.
(d) The Company will comply, at its own expense, with all requirements imposed upon it by the SEC and by the Act, the Exchange Act and the SEC Rules and Regulations, including, without limitation, Rules 10b-5 and 10b-6 under the Exchange Act, in each case as from time to time in effect, so far as necessary to permit the continuance of offers, sales or dealings in Shares during such period in accordance with the provisions hereof and the Prospectus.
(e) If, at any time prior during the period when the Prospectus is required by law to the filing of the Final Prospectus pursuant to Rule 424(b)be delivered, any event occurs as a result of which which, in the Disclosure Package opinion of counsel to the Company or the Agent, the Prospectus, including any amendments or supplements, would include any contain an untrue statement of a material fact fact, or would omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time not misleadingmade, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be is necessary in the opinion of counsel to the Company or the Agent at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Prospectus, including any amendments or supplements to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusand all other laws, the Company Company, as appropriate, will (i) notify promptly advise the Representative of such event, (ii) Agent thereof and will promptly prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, SEC and any other authority with jurisdiction an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158supplement.
(f) Upon requestThe Company will not acquire any shares of Common Stock or Preferred Stock prior to the Expiration Date.
(g) During the period of three years after the date of the Prospectus, the Company will furnish to the Representative Agent (i) as soon as practicable (but in no event earlier than required to be filed with the SEC) after the end of each fiscal year, the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and counsel corresponding statements of income, stockholders' equity and changes in financial position for the Underwritersyear then ended, without chargesuch financial statements to be certified by independent public accountants; (ii) as soon as practicable (but in no event earlier than required to be filed with the SEC) after the end of each fiscal quarter (other than the last quarter of each fiscal year), signed copies an unaudited balance sheet and statements of income, stockholders' equity and changes in financial position of the Registration Statement Company as at the end of and for such quarter; (including exhibits theretoiii) and to each other Underwriter as soon as available, a copy of each proxy statement, financial statement and periodic and special reports of the Registration Statement Company mailed to holders of any class of its securities registered under Section 12 of the Exchange Act; (iv) as soon as practicable after the filing thereof, of each report or other statement or document filed by the Company with the SEC or other regulatory agency or with any national securities exchange or quotation system on which any securities of the Company may be listed or quoted; and (v) from time to time, such other information concerning the Company as the Agent may reasonably request.
(h) The Company will comply or cause to be complied with the conditions to the obligations specified in Section 11 hereof.
(i) The Company shall promptly prepare and file with the SEC, from time to time, such reports as may be required to be filed by the SEC Rules and Regulations, includ-ing, without exhibits theretolimitation, reports with respect to the sale of the Shares and the application of the proceeds thereof as may be required in accordance with Rule 463 under the Act.
(j) andThe Company shall comply in all material respects with the undertaking given by the Company in connection with the qualification of the Shares for offering and sale under the Blue Sky Laws.
(k) The Company shall use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(l) The Company will not, during the period of the Offering and for a period of one year after the date hereof, without the prior written consent of the Agent, which shall not be unreasonably withheld, offer for sale, sell or issue, contract to sell or otherwise dispose of, any shares of, or any securities convertible into or exercisable for, -or sell or grant any options, rights or warrants for the purchase of, Common Stock (such instruments being collectively referred to in this subsection(l) as "Rights"); provided, however, that the Company may (i) issue options to purchase Common Stock (and issue shares of Common Stock upon the exercise thereof) to employees so long as delivery the exercise price of such options is no less than the fair market value (as determined by the last sales price per share, or, if there have been no sales, the average of the closing bid and asked price per share, or, if there have been no such quotes, an amount established in good faith by the board of directors of the Company) per share of Common Stock on the date of grant and the aggregate amount of all options issued during such period does not exceed 10% of the issued and outstanding shares of Common Stock of the Company on the Expiration Date, and (ii) at any time after six months from the date hereof, issue Common Stock or Rights at a prospectus price, exercise price or conversion price, as applicable, of $6.75 per share or more.
(m) Other than as permitted by an Underwriter applicable law, the Company will not distribute any Prospectus or dealer other offering material in connection with the subject offering and sale of the Shares.
(n) To the extent required by law or applicable rules and regulations, the Company will promptly take all steps necessary to register its class of Common Stock under Section 12(g) of the Exchange Act to ensure that it maintains the registration of the Common Stock under Section 12(g) of the Exchange Act. The Company shall maintain the effectiveness of such registration for not less than three years.
(o) The Company will qualify the Shares under the Blue Sky laws of such jurisdictions as the Agent may reasonably request to make such applications, file such consents to service of process or other documents and furnish such other information as may be required by reasonably requested for that purpose and to comply with such laws so as to permit the Act (including continuance of sales and dealings in circumstances where such requirement may be satisfied pursuant to Rule 172), which jurisdictions for as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto long a period as the Representative Agent may reasonably request. The Company will pay notify the expenses Agent immediately upon notice of, and confirm in writing, the suspension of printing qualification of the Shares or other production the threat of all documents relating to such action in any jurisdiction. In each jurisdiction where any of the offering that Shares shall have been qualified as provided above, the Company will make and file such statements and reports as are required to by, or in the future may be preparedrequired by, furnished or delivered by the Companylaws of such jurisdiction.
(gp) The Company agrees to cause the stock certificates of all of the current shareholders of the Company and of any future officers or directors of the Company to be clearly legended as being restricted against transfer without compliance with the Act and to cause the Company's transfer agent to put stop transfer instructions against such stock certificates.
(q) At each of the Closing Dates, the Company will have completed the Offering in all material respects as described in the Prospectus and in accordance with all applicable laws, regulations, decisions and orders of the SEC and state securities authorities.
(r) The Company will arrangemaintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering in an account bearing interest at the rate, if necessaryany, for described in the qualification Prospectus until the Expiration Date and satisfaction of all conditions precedent to the release of the Securities Company's obligation to refund payments received from persons subscribing for sale under or ordering Shares in the laws Offering as described in the Prospectus or until refunds of such jurisdictions within funds have been made to the United States persons entitled thereto as described in the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectProspectus.
(is) The Company agrees that, unless it has obtained will use its best efforts to (i) encourage and assist a specialist or will obtain, as market maker to establish and maintain a market for the case may be, the prior written consent of the RepresentativeShares, and (ii) each Underwriter, severally obtain approval for and not jointly, agrees maintain quotation of the shares on the ASE or the Small-Cap Market of the NASDAQ system effective on or prior to the Expiration Date. The Company will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made NASD "Interpretation With Respect to Free Riding 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing ProspectusWithholding.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping."
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(jt) The Company will comply conduct its business in compliance in all material respects with all applicable securities federal and other state laws, rules and rules, regulations, includingdecisions, without limitationdirectives and orders, the Sarbanes Oxley Act of 2002including all decisions, directives and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions orders of the Sarbanes Oxley Act of 2002SEC.
(ku) The Company will shall not take, directly deliver the Shares until it has satisfied or indirectly, any action designed caused to or that would constitute or that might reasonably be expected to cause or result in, under satisfied in all material respects each and every condition set forth in Section 11 hereof unless such condition is waived in writing by the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterAgent.
Appears in 2 contracts
Samples: Agency Agreement (Neosurg Technologies Inc), Agency Agreement (Neosurg Technologies Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement theretoin a form approved by the Representatives, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within under the time period prescribed Act and will provide evidence satisfactory to notify the Representative Representatives promptly of such timely filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Bonds and of the offering, in the form attached as Schedule III hereto, will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Representatives with copies thereof, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Bonds for offering or sale in any jurisdiction or jurisdiction, (vi) of the institution initiation or threatening of any proceeding or examination for any such purpose. The Company will use its best efforts to prevent the issuance , and (vii) of any such stop order request by the Commission for the amending or the occurrence of any such suspension or objection to the use supplementing of the Registration Statement andStatement, upon such issuanceany Preliminary Prospectus, occurrence the Prospectus or notice of objectionany Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an Company will not file (i) any amendment to the Registration Statement or supplement to the Prospectus (excluding documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Representatives a new registration statement copy for your review prior to filing and using will not file any such proposed amendment or supplement to which the Representatives reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will consult with the Representatives as to any comments which the Representatives make in a timely manner with respect to such document. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to have obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Bonds by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Representatives may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representatives and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Representatives may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions within in the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesBonds; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeRepresentatives, upon request, copies all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably consent shall not 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesunreasonably withheld.
(j) The Company will comply with obtain or make prior to the issuance of the Bonds all applicable securities regulatory and other lawsgovernmental approvals, rules consents, authorizations, orders, filings and regulationsregistrations necessary for the issuance of the Bonds, including, without limitation, any required approvals, consents, authorizations, orders, filings and registrations of the Sarbanes Oxley Act MPUC pertaining to the capital structure of 2002the Company.
(k) In connection with the offering of the Bonds, until the Underwriters shall have notified the Company and the other Underwriters of the completion of the sale of the Bonds, the Company will not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Bonds.
(kl) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterBonds.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
a. The Company will notify the Representatives immediately, and confirm the notice in writing, (ai) Prior to the termination of the offering of the Securities, the Company will not file any amendment effectiveness of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement amendment thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment to the Registration Statement shall have been filed or become effectiveCommission, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction or the institution or threatening initiation of any proceeding proceedings for such purposepurpose and (v) during the period when the Prospectus is required to be delivered under the 1933 Act or Securities Exchange Act of 1934, as amended (the "1934 Act"), of any change, or any event or occurrence which reasonably could result in such a change, in the Company's condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company or the happening of any event, including the filing of any information, documents or reports pursuant to the 1934 Act, that makes any statement of a material fact made in the Registration Statement, the Prospectus or the Offering Memorandum (as then amended or supplemented) untrue or which requires the making of any amendments of or supplements to the Registration Statement, the Prospectus or the Offering Memorandum in order to state a material fact required by the 1933 Act or the 1933 Act Regulations to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus to comply with the 1933 Act, the 1933 Act Regulations or any other law. The Company will shall use its best efforts to prevent the issuance of any such stop order or order suspending the occurrence qualification or exemption of the Securities under any such suspension state securities or objection to Blue Sky laws, and, if at any time the use Commission shall issue any stop order suspending the effectiveness of the Registration Statement andStatement, upon or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such issuance, occurrence or order at the earliest possible time.
b. The Company will give the Underwriters notice of objection, its intention to obtain as soon as possible the withdrawal of such stop order prepare or relief from such occurrence or objection, including, if necessary, by filing an file any amendment to the Registration Statement (including any post-effective amendment), any Rule 462(b) Registration Statement, any Term Sheet or a new registration statement and using its best efforts to have such any amendment or new registration statement declared effective as soon as practicable.supplement to the Prospectus (including any revised prospectus or Term Sheet and preliminary prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the prospectus on file at the Commission at the time the
(b) c. The Company will prepare deliver to the Underwriters as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Underwriters may reasonably request.
d. The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. The Company will furnish to each Underwriter such number of copies of the Offering Memorandum as such Underwriter may reasonably request for the purpose of effecting a final term sheet, containing solely a description of final terms private placement of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleCanada.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), e. If any event occurs shall occur as a result of which it is necessary, in the Disclosure Package would opinion of counsel for the Underwriters, to amend or supplement the Prospectus or the Offering Memorandum in order to make the Prospectus or Offering Memorandum as applicable not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus or Offering Memorandum as applicable (in form and substance satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus or Offering Memorandum as applicable will not include any an 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 existing at such the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
f. During the period of five years hereafter, the Company will furnish to you (i) notify promptly the Representative so that any use as soon as available, a copy of each report of the Disclosure Package may cease until it is amended Company mailed to stockholders or supplemented, filed with the Commission or Nasdaq National Market ("NASDAQ"); and (ii) amend or supplement from time to time such other information concerning the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities Company as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5appropriate confidentiality and indemnification provisions with respect to any material nonpublic information so furnished.
g. The Company will endeavor, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment in cooperation with counsel to the Registration Statement Underwriters, to qualify the Securities for offering and sale under the applicable securities or new registration statement declared effective as soon as practicable in order to avoid any disruption in use Blue Sky laws of such states and other jurisdictions of the Final Prospectus United States and (iv) supply any supplemented Final Prospectus to in the Representative in such quantities province of Ontario and Quebec as the Representative Underwriters may reasonably request.designate; provided, however, that the Company
(e) As soon as practicable, the h. The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date of the Registration Statement" (as defined in said Rule 158).
i. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus and the Offering Memorandum under "Use of Proceeds."
j. If, at the time that the Registration Statement becomes effective, any Rule 430A Information or Rule 434 Information shall have been omitted therefrom, then immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A or Rule 434 and Rule 424(b), copies of a Prospectus or Term Sheet containing such Rule 430A Information and Rule 434 Information, respectively, or, if required by Rule 430A, a post-effective amendment to the Representative Registration Statement (including an amended Prospectus and Offering Memorandum), containing such Rule 430A Information.
k. If the Company elects to rely upon Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00 P.M. Eastern Time on the date hereof and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2).
l. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the rules and regulations of the Commission under the 1934 Act (the "1934 Act Regulations").
m. During a period of 120 days from the date of the Prospectus, the Company will not, without prior written consent of the Representatives on behalf of the Underwriters, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to this Agreement or pursuant to reservations, agreements, conversions or employee or director benefit plans or the exercise of convertible securities referred to in the Prospectus.
o. The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its stockholders designated by you.
p. The Company will supply the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Securities under the 1933 Act.
q. Prior to the Closing Date, the Company shall furnish to the Underwriters, as soon as they have been prepared, copies of any unaudited interim consolidated earnings statement or financial statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish for any periods subsequent to the Representative and counsel for periods covered by the Underwriters, without charge, signed copies of financial statements appearing in 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated r. Prior to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will notissue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Securities, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result the Representatives unless in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate judgment of the Company or any person in privity with the Company or any affiliate of the Company)and its counsel, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar and after notification to the Preferred StockRepresentatives, such press release or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiescommunication is required by law.
(j) s. The Company has not taken, nor will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not it take, directly or indirectly, any action designed to or that would constitute to, or that might reasonably be expected to to, cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Securities, except that .
t. The Company will use its best efforts to maintain the Company makes no agreement as to quotation of the activities of any UnderwriterCommon Stock on NASDAQ.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters you that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the date and time that this Agreement is executed (the "Execution Time"), and any amendment thereof, to become effective. Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus without the prior consent of the Representatives. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Final Prospectus unless is otherwise required under Rule 424(b), the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (iA) when the Final Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiC) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (iiiD) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (ivE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (vF) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.circumstances
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatPurchaser as follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on from the date hereof and continuing of this Agreement to and including the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause their representations and warranties contained in Section 4 hereof to be true as of the Closing Date, after giving effect to the transactions contemplated by this Note Purchase Agreement, as if made on and as of the Closing Date.
(b) [Reserved].
(c) The Company will not, without the prior written consent nor will it permit any of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed its Affiliates to, nor will it permit any person acting on its or might reasonably be expected their behalf (other than the Purchaser or its Affiliates) to, result in the disposition resell any Securities that have been acquired by any of them.
(whether by actual disposition or effective economic disposition due to cash settlement or otherwised) by the The Company or will not, nor will it permit any affiliate of the Company its Affiliates or any person in privity with acting on its or their behalf (other than the Purchaser or its Affiliates as to which the Company makes no agreement) to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities.
(e) The Company will not, nor will it permit any of its Affiliates or any affiliate of person acting on its or their behalf (other than the Company)Purchaser or its Affiliates as to which the Company makes no agreement) to, directly or indirectly, including the filing (make offers or participation in the filing) sales of a registration statement with the Commission in respect ofany security, or establish solicit offers to buy any security, under circumstances that would require the registration of any of the Securities under the Securities Act.
(f) The Company will not, nor will it permit any of its Affiliates or increase a put equivalent position any person acting on its or liquidate their behalf (other than the Purchaser or decrease a call equivalent position its Affiliates as to which the Company makes no agreement) to, engage in any form of “general solicitation or general advertising” (within the meaning of Section 16 Regulation D) in connection with any offer or sale of the any of the Securities.
(g) So long as any of the Securities are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system, (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section 8 of the Investment Company Act, (iii) the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3) and (iv) the Company shall not engage in any activity which would cause it to be an “investment company” required to be registered under the provisions of the Investment Company Act.
(h) The Company shall furnish to (i) the holders, and subsequent holders of the Securities, (ii) Xxxxx Bros. Financial Management LLC (at Xxxx Centre, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000, or such other address as designated by Xxxxx Bros. Financial Management LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Xxxxx Bros. Financial Management LLC), a duly completed and executed certificate in the form attached hereto as Annex C, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company.
(i) So long as the Securities are outstanding and considered “restricted securities” under Rule 144(a)(3) under the Securities Act, the Company, during any period in which it is not subject to and in compliance with section 13 or 15(d) of the Exchange Act, any preferred securitiesnor exempt from such reporting requirements pursuant to Rule 12g3-2(b) under the Exchange Act, shall provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any preferred stock or any other securities information required to be provided by Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the benefit of the CompanyPurchaser, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities holders of the CompanySecurities, except for and the offering prospective purchasers designated by the Purchaser and such holders, from time to time, of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002[Reserved].
(k) The In the event that either (a) an Event of Default (as defined in Schedule 2) has occurred and is continuing, or (b) the Company will not take, directly or indirectly, any action designed has elected to or that would constitute or that might reasonably be expected to cause or result in, defer payments of interest on the Securities by extending the interest payment period under the Exchange Act or otherwiseSecurities (as provided for in Section 8(a) of Schedule 2), stabilization or manipulation of the price of any security of the Company shall provide to facilitate (i) the sale or resale holders, and subsequent holders of the Securities, except that (ii) Xxxxx Bros. Financial Management LLC (at Xxxx Centre, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000, or such other address as designated by Xxxxx Bros. Financial Management LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company makes no agreement (which identification may be made by either such beneficial owner or by Xxxxx Bros. Financial Management LLC) GAAP and statutory financial statements and interim quarterly financial statements, if available, including accompanying management discussion and analysis, for the Company and, if and as available, for its subsidiaries or affiliates. In addition, for the Company or any of its subsidiaries or affiliates which may be in liquidation. under regulatory supervision or in runoff, the Company shall provide to the activities of Purchaser any Underwriterreports and presentations to rating agencies, any run-off plan shared with regulatory authorities, internal or external actuarial reports and management projections.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters Agents that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or (including the Final Prospectus) to the Basic Prospectus (other than by periodic or current reports filed under the Exchange Act or by an amendment or supplement providing solely for a change in the interest rates on the Securities or a change in the range of maturities of the Securities or a change in the principal amount of Securities remaining to be sold or other changes not material to the offer or sale of the Securities) unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative you of such timely filing. The Company will promptly advise the Representative Agents (i) when the initial Final Prospectus, and any supplement thereto, Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement shall have been filed or become effective, (iii) of the receipt of any comments from the Commission, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus or for any additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and purpose, (vvi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose, (vii) of the happening of any event which makes untrue any statement of a material fact made in the Registration Statement or the Final Prospectus or which requires the making of a change in the Registration Statement or the Final Prospectus in order to make any material statement therein not misleading, (viii) of any change in the rating assigned by any nationally recognized statistical rating organization to the program or any debt securities (including the Notes) of the Company, or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of the Program or any such debt securities, or the withdrawal by any nationally recognized statistical rating organization of its rating of the Program or any such debt securities and (ix) upon the filing of any supplement to the Final Prospectus not reviewed in advance by the Agents pursuant to the first sentence of this paragraph (a). The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use order, as described in clause (v) of the Registration Statement third sentence of this paragraph (a), and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly you to suspend solicitation of offers to purchase Securities and to cease using the Representative of such eventFinal Prospectus, as then amended or supplemented, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or will effect such compliance, compliance and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to you in connection with the preparation or filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Securities hereunder.
(ec) As soon as practicable, the The Company will make generally available to its security holders securityholders and to the Representative a consolidated Agents as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representative Agents and counsel for the Underwriterstheir counsel, without chargecharge upon request, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy the termination of the Registration Statement (without exhibits thereto) and, so long as delivery offering of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities, as many copies of any Preliminary Prospectus, Final Prospectus and the Final Prospectus and any Issuer Free Writing Prospectus amendments thereof and any supplement supplements thereto as the Representative Agents may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(ge) The Company will arrange, if necessary, use reasonable efforts in cooperating with the Agents to arrange for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Agents may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors.
(f) Each acceptance by the Company of an offer for the purchase of Securities shall be obligated deemed to qualify be an affirmation that the representations and warranties of the Company contained in this Agreement are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to do business the purchaser or the purchaser's agent of the Securities relating to such acceptance, as though made at and as of each such time (except that such representations and warranties shall be deemed to relate to the Registration Statement as then in any jurisdiction where it is not now so qualified effect and the Final Prospectus then in use).
(g) Each time the Final Prospectus shall be amended or to take any action that would subject it to service of process in suits, supplemented (other than those arising out by an amendment or supplement providing solely for a change in the interest rates on the Securities or a change in the range of maturities of the offering Securities or other changes which, in the reasonable judgment of the Agent, are not material to the offer or sale of the Securities) the Company shall furnish or cause to be furnished forthwith to the Agents a certificate in form satisfactory to the Agents in their reasonable judgment to the effect that the statements contained in the certificate referred to in Section 5(d) hereof which were last furnished to the Agents are true and correct at the time of such amendment or supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement as then in effect and the Final Prospectus then in use) or, in any jurisdiction where lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 5(d) but modified to relate to the Registration Statement as then in effect and the Final Prospectus then in use.
(h) Each time the Final Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates on the Securities or a change in the range of maturities of the Securities or other changes which, in the reasonable judgment of the Agent, are not material to the offer or sale of the Securities), the Company shall furnish or cause to be furnished forthwith to the Agents a written opinion of the General Counsel or an Associate General Counsel of the Company, dated the date of delivery of such opinion, of the same tenor as the opinion referred to in Section 5(b) hereof but modified to relate to the Registration Statement as then in effect and the Final Prospectus then in use or, in lieu of such opinion, counsel shall furnish the Agents with a letter to the effect that the Agents may rely on such last furnished opinion to the same extent as though it is not now so subjectwere dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement as then in effect and the Final Prospectus as in use at the time of delivery of such letter authorizing reliance).
(i) The Each time the Final Prospectus shall be amended or supplemented to set forth amended or supplemental financial information, the Company agrees thatshall cause Coopers & Xxxxxxx forthwith to furnish the Agents a letter, unless it has obtained dated the date of filing of such amendment or will obtainsupplement with the Commission, in form satisfactory to the Agent, of the same tenor as the case may be, the prior written consent corresponding portions of the Representative, letter referred to in Section 5(e) hereof but modified to relate to the Final Prospectus then in use and (ii) each Underwriter, severally with such changes as may be necessary to reflect changes in the financial statements and not jointly, agrees with other information derived from the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent accounting records of the Company, 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 extent such financial statements and other information are available as of a “free writing prospectus” (as defined in Rule 405) required date not more than three calendar days prior to be filed by the Company with the Commission or retained by the Company under Rule 433date of such letter; provided, other than however, that, if the Final Term Sheet described above Prospectus is amended or other free writing prospectuses containing supplemented solely to include or incorporate by reference financial information as of and for a description fiscal quarter, Coopers & Xxxxxxx may limit the scope of such letter, which shall be satisfactory in form to you, to the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Dateunaudited financial statements, the Company will not, without the prior written consent related "Management's Discussion and Analysis of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose Financial Condition and Results 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or Operations" and any other securities information of the Companyan accounting, including any backup undertaking of financial or statistical nature included in such preferred stock amendment or other securitiessupplement, unless, in each case that are substantially similar to the Preferred Stockyour reasonable judgment, such letter should cover other information or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitieschanges in specified financial statement line items.
(j) The Company will comply with pay all applicable securities reasonable costs incident to the performance of its obligations hereunder including the costs of the preparation, printing, delivering and filing of all documents relating to the offering; the preparation, issuance and delivery of the Notes, including any fees and expenses relating to the eligibility and issuance of the Notes in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Notes, to the Underwriters; the fees and disbursements of the Company's accountants, counsel and other lawsadvisors or agents (including any calculation agent or exchange rate agent) of the Trustee; the reasonable fees and disbursements of counsel to the Agents incurred in connection with the establishment of the Program and incurred from time to time in connection with the transactions contemplated hereby; the fees and expenses incurred in connection with any listing of Notes on a securities exchange; the costs of any filings, rules and regulationsif any, includingwith the National Association of Securities Dealers, without limitationInc. (the "NASD") relating to the Securities, the Sarbanes Oxley Act of 2002, and use its best efforts fees paid to cause rating agencies in connection with the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions rating of the Sarbanes Oxley Act Securities and the costs (including filing fees and fees and disbursements of 2002counsel to the Agents) of qualifying the Securities as provided in paragraph (e) of this Section 4 and preparing memoranda relating thereto. The Company will reimburse the Agents for out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Agents in connection with this Agreement and the sale of Securities hereunder.
(k) The Company will not takeprepare, directly or indirectly, with respect to any action designed Notes to be sold to or that would constitute through one or that might reasonably be expected more Agents pursuant to cause or result inthis Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents. The Company will deliver such Pricing Supplement no later than 11:00 a.m., New York City time, on the business day following the date of the Company's acceptance of the offer for the purchase of such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the Exchange Act or otherwise, stabilization or manipulation not later than the close of business of the price of any security of Commission on the fifth business day after the date on which such Pricing Supplement is first used.
(l) The Company will from time to facilitate time timely update through the sale or resale of the Securities, except that the Company makes no agreement as Closing Date its representations in Section 1(f) hereof to the activities extent required by additions to or deletions from its universe of any Underwritersignificant subsidiaries (as defined in Rule 1-02 of Regulation S-X), which updating shall, for purposes hereof, constitute a revision to the definitions of "Corporate Subsidiaries" and "Subsidiaries".
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the several Underwriters thatas follows:
(a) Prior The Company will not, during such period as the Prospectus is required by law to the termination be delivered in connection with sales of the offering of the SecuritiesShares by an Underwriter or dealer, the Company will not file any amendment of or supplement to the Registration Statement or supplement the Prospectus, unless a copy thereof shall first have been submitted to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative within a copy for their review reasonable period of time prior to the filing thereof and will the Representative shall not file any such proposed amendment or supplement to which they reasonably object. have objected thereto in good faith.
(b) The Company will cause notify the Final Prospectus, properly completedRepresentative promptly, and any supplement theretowill confirm such advice in writing, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall have been filed or become becomes effective, (iiiii) of any request by the Commission SEC for amendments or its staff for any amendment of supplements to the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or the threat thereof, (iv) of the happening of any event during such period as the Prospectus is required by law to be delivered in connection with sales of the Shares by an Underwriter or dealer, that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading, and (v) of the receipt by the Company or any representative or attorney of the Company of any notification with respect other communication from the SEC relating to the suspension Company, the Registration Statement or the Prospectus. If at any time the SEC shall issue any order suspending the effectiveness of the qualification Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeearliest possible moment. The Company will use its best efforts to prevent prepare the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, Prospectus in a form acceptable to you (approved by the “Final Term Sheet”) Representative and to will file such term sheet Prospectus pursuant to Rule 433(d424(b) within under the time required by such RuleAct not later than the SEC's close of business on the second business day following the execution and delivery of this Agreement.
(c) If the Company elects to rely upon Rule 462(b) of the Rules and Regulations, the Company shall file the Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) of the Rules and Regulations by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing, either pay to the SEC the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the Rules and Regulations.
(d) If, at any time prior when a Prospectus relating to the filing of Shares is required to be delivered under the Final Prospectus pursuant to Rule 424(b)Act, any event occurs as a result of which which, in the Disclosure Package judgment of the Company or in the opinion of counsel for the Underwriters, the Prospectus, as then amended or supplemented, would 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 at such time made, not misleading, or the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is Registration Statement, as then 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if for any other reason it shall be is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus or the Registration Statement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusRules and Regulations, the Company will (i) promptly notify promptly the Representative of such eventthereof and, (iisubject to Section 4(b) hereof, will prepare and file with the CommissionSEC, subject to at the second sentence of paragraph (a) of this Section 5Company's expense, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus an amendment or supplement to the Representative in Prospectus that corrects such quantities as the Representative may reasonably requeststatement or omission or effects such compliance.
(e) As soon as practicable, the The Company will make generally available to its security holders and furnish to the Representative a consolidated earnings statement or statements Representative, without charge, two signed copies of the Company Registration Statement and its subsidiariesof any post-effective amendment thereto, which including financial statements and schedules, and all exhibits thereto and will satisfy furnish to the provisions of Section 11(a) Representative, without charge, for transmittal to each of the Act other Underwriters, copies of the Registration Statement and Rule 158any post-effective amendment thereto, including financial statements and schedules but without exhibits.
(f) Upon requestThe Company will comply with all the provisions of all undertakings contained in the Registration Statement.
(g) From time to time for such period as the Prospectus is required by the Act to be delivered, the Company will furnish deliver to the Representative and counsel for each of the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of the Prospectus or any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering that are or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be prepareddelivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, furnished in the light of the circumstances under which it was made, not misleading, or delivered by in the Company.
(g) The Registration Statement in order to make any statement therein not misleading, or if it is necessary to supplement or amend the Prospectus or the Registration Statement to comply with law, the Company will arrangeforthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, if necessary, for the qualification and deliver to each of the Securities for sale under the laws Underwriters, without charge, such number of such jurisdictions within the United States copies thereof as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution request.
(h) Prior to any public offering of the SecuritiesShares by the Underwriters, the Company will cooperate with the Representative and its counsel in connection with the registration or qualification of the Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Representative may reasonably request; provided provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning of five (5) years commencing on the date hereof and continuing to and including the Closing Date, the Company will not, without furnish to the prior written consent Representative and each other Underwriter who may so request copies of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representative and each other Underwriter who may so request a copy of each annual or any affiliate of the Company or any person in privity other report it shall be required to file with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesSEC.
(j) The Company will comply with all applicable securities and other lawsmake generally available to holders of its securities, rules and regulationsas soon as may be practicable, includingbut in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Closing Date falls, without limitation, a consolidated earnings statement (which need not be audited but shall be in reasonable detail) for a period of twelve (12) months commencing after the Sarbanes Oxley Act of 2002Closing Date, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, satisfying the provisions of Section 11(a) of the Sarbanes Oxley Act (including Rule 158 of 2002the Rules and Regulations).
(k) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Prospectus under "Use of Proceeds."
(l) The Company will not takeat any time, directly or indirectly, take any action designed to intended, or that would constitute or that which might reasonably be expected expected, to cause or result in, under the Exchange Act or otherwisewhich will constitute, stabilization or manipulation of the price of any security of the Company Shares to facilitate the sale or resale of any of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterShares.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters each of you that:: -------------------------
(a) Prior to the termination It will advise you promptly and, if requested by you, confirm such advice in writing, of the offering happening of any event during the period as in your judgment you are required to deliver an Offering Memorandum in connection with sales of the SecuritiesNotes by you which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, the Company will not file any amendment in light of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to circumstances under which they reasonably object. The Company were made, not misleading.
(b) It will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph notify you promptly of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and receipt of any supplement thereto, shall have been filed with comments from any state securities commission or any other regulatory authority that relate to the Commission pursuant to Rule 424(b)preliminary offering memorandum or the Offering Memorandum, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for offering or sale in any jurisdiction jurisdiction, or the institution or threatening initiation of any proceeding for such purposepurpose by any state securities commission or any other regulatory authority. The Company will shall use its best efforts to prevent the issuance of any such stop order or order suspending the occurrence of any such suspension qualification or objection to the use exemption of the Registration Statement Notes under any state securities or Blue Sky laws, and, upon such issuanceif at any time any state securities commission or any other regulatory authority shall issue an order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using Company shall use its best efforts to have obtain the withdrawal or lifting of such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of order at the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Ruleearliest possible time.
(c) IfPromptly after the execution of this Agreement, at any and from time prior to time thereafter for such period as in your judgment the filing Offering Memorandum is required to be delivered in connection with sales of the Final Prospectus pursuant Notes by you, it will furnish to Rule 424(b)you, any event occurs without charge, 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 many copies of the circumstances under which they were made at such time not misleading, the Company will Offering Memorandum (i) notify promptly the Representative so that any use and 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 the Offering Memorandum) as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is during such period as in your judgment you are required to be delivered under deliver the Act (including Offering Memorandum in circumstances where such requirement may be satisfied pursuant to Rule 172)connection with sales of the Notes by you, any event occurs shall occur as a result of which it becomes necessary to amend or supplement the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary Offering Memorandum 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 delivered to a purchaser, not misleading, or if it shall be is necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to Offering Memorandum so that the statements in the Offering Memorandum, as so amended or supplemented, will not, in light of the circumstances existing as of the date the Offering Memorandum is so delivered, be misleading, or so that the Offering Memorandum will comply with the Act or the Exchange Act or the respective rules thereunderapplicable law, including in connection with use or delivery of the Final Prospectus, the Company it will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment so amend or supplement or new registration statement which the Offering Memorandum and will correct furnish to you without charge such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective number of copies thereof as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative you may reasonably request.
(e) As soon as practicableWhether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, expenses, fees and taxes incurred in connection with or incident to (i) the printing, filing, processing and distribution and delivery of the Offering Memorandum, each preliminary offering memorandum and all amendments and supplements thereto, (ii) the printing, processing, execution, distribution and delivery of this Agreement, the Indenture, any memoranda describing state securities or Blue Sky laws and all other agreements, memoranda, correspondence and other documents printed, distributed and delivered in connection with the offering of the Notes, (iii) the registration or qualification of the Notes for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph (h), below (including, in each case, the reasonable fees and disbursements of counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (iv) furnishing such copies of the preliminary offering memorandum and the Offering Memorandum, all amendments and supplements to any of them as may be reasonably requested by the Initial Purchasers, (v) the inclusion of the Notes on the National Association of Securities Dealers, Inc. (the "NASD") Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") and the approval of the Notes by DTC for "book-entry" transfer, (vi) the rating of the Notes by investment rating agencies and (vii) the performance by the Company will make generally available to of its security holders other 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 Representative a consolidated earnings statement or statements sale and delivery of the Company and its subsidiaries, which will satisfy Notes to the provisions of Section 11(a) of the Act and Rule 158Initial Purchasers.
(f) Upon request, the Company It will furnish to the Representative and counsel for the Underwriterseach Initial Purchaser, without charge, two (2) signed copies (plus one additional signed copy to your legal counsel) of the Registration Statement Statements as first filed with the Commission and of each amendment or supplement to it, including each post-effective amendment and all exhibits filed therewith.
(including exhibits theretog) It will not make any amendment or supplement to any preliminary offering memorandum or the Offering Memorandum, of which you shall not previously have been advised and to each other Underwriter provided a copy within two business days prior to the first use thereof (or such reasonable amount of time as is necessitated by the exigency giving rise to the need for such amendment or supplement), or to which you shall object; and it will prepare and provide you with, promptly upon your request, any amendment or supplement to the Offering Memorandum which may be necessary or advisable in connection with the resale of the Registration Statement Notes by you.
(without exhibits theretoh) and, so long as delivery It will cooperate with you and your counsel in connection with the registration or qualification of a prospectus by an Underwriter or dealer may be required the Notes for offer and sale to and by the Act (including in circumstances where Initial Purchasers under the state securities or Blue Sky laws of such requirement jurisdictions as you may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the continue such qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required by law for the distribution of the Securities; provided Notes (provided, -------- that in no event shall the Company shall not be obligated 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 it to taxation or to general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where in which it is not now so subject).
(i) The Company agrees For so long as and at any time that it is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934 and the Commission's rules and regulations thereunder (the "Exchange Act"), the Company, upon request of any holder of the Notes, will furnish to such holder, and to any prospective purchaser or purchasers of the Notes designated by such holder, information satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act; provided, however, that the Company's obligations under this Section 4(i) shall -------- ------- terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Notes for the Notes tendered therein is consummated or (ii) the date the Shelf Registration Statement is declared effective by the Commission; provided further that, unless it notwithstanding the foregoing proviso, the -------- ------- Company shall be obligated to deliver, upon request, any information required by Rule 144A(d)(4) under the Act to prospective purchasers of the Notes during any period during which, pursuant to the Registration Rights Agreement, the Shelf Registration Statement is required to be effective, but such effectiveness has obtained been suspended or revoked for any reason.
(j) It will, so long as any of the Notes are outstanding, deliver to the Initial Purchasers, without charge, a copy of each report or such other publicly available information furnished to holders of the Notes, or filed with the Commission, whether or not required by law or pursuant to the Indenture, and such other publicly available information concerning the Company and its subsidiaries (the "Subsidiaries") as you may reasonably request, at the same time as such reports or other information are furnished to such holders.
(k) It will obtainnot voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Notes.
(l) It will use the proceeds from the sale of the Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(m) It will cooperate with you to cause the Notes to be designated as eligible for trading through PORTAL in accordance with the rules and regulations of the NASD.
(n) It will not, and will ensure that no affiliate (as such term is defined in the Commission's Rule 501(b) under the Act) of the Company will offer, sell or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could be integrated with the offer and sale of the Notes in a manner that would require the registration of the Notes under the Act.
(o) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, as the case may be, the prior written consent of the Representativeit will not, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make authorize or knowingly permit any person acting on its behalf to, solicit any offer relating to buy or offer to sell the Securities that would constitute an Issuer Free Writing Prospectus Notes by means of any form of general solicitation or that would otherwise constitute a “free writing prospectus” general advertising (as defined such terms are used in Rule 405) required to be filed by Regulation D under the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledgeAct), or otherwise dispose of (or enter into in 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, including the filing (or participation in the filing) of manner involving a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position public offering within the meaning of Section 16 4(2) of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(jp) The Company It will comply with all applicable securities and other lawscause each Security to bear the following legend until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: "THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, rules and regulationsAS AMENDED (THE "SECURITIES ACT"), includingAND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, without limitationSOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, the Sarbanes Oxley Act of 2002PLEDGED OR OTHERWISE TRANSFERRED, and ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(q) It will use its best efforts to cause do and perform all things required to be done and performed under this Agreement by it prior to or after the Company’s directors Closing Date and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, satisfy all conditions precedent to the provisions delivery of the Sarbanes Oxley Act of 2002Notes.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement theretoin a form approved by the Underwriters, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within under the time period prescribed Act and will provide evidence satisfactory to notify the Representative Underwriters promptly of such timely filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Shares and of the offering, and will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Underwriters promptly of such filing. During the period for which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representative Underwriters (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Underwriters with copies thereof, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and Issuer Free Writing Prospectus, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction or jurisdiction, (vi) of the institution initiation or threatening of any proceeding or examination for any such purpose. The Company will use its best efforts to prevent the issuance , and (vii) of any such stop order request by the Commission for the amending or the occurrence of any such suspension or objection to the use supplementing of the Registration Statement andStatement, upon such issuanceany Preliminary Prospectus, occurrence the Prospectus or notice of objectionany Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an Company will not file (i) any amendment to the Registration Statement or supplement to the Prospectus (excluding documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Underwriters a new registration statement copy for your review prior to filing and using will not file any such proposed amendment or supplement to which the Underwriters reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Underwriters a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will consult with the Underwriters as to any comments which the Underwriters make in a timely manner with respect to such document. During the period for which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares. Following the Closing Date and, for as long as a prospectus relating to the Shares is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to have obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Shares by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Underwriters a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Underwriters conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Underwriters may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Underwriters, the Company has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Underwriters and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Underwriters may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Shares for sale under the laws of such jurisdictions within in the United States as the Representative Underwriters may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesShares; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, as For a period of two years after the case may beFirst Closing Date, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeUnderwriters, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the [___]-day period beginning on the date hereof and continuing to and including the Closing Dateof this Agreement, the Company will not, without the prior written consent of Citigroup Global Markets Inc., not offer, sell, contract to sell, pledge, pledge 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)of, directly or indirectly, including or file with the filing (or participation in the filing) of Commission a registration statement with under the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActSecurities Act relating to, any preferred securities, any preferred stock shares of Common Stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for any shares of Common Stock, or publicly disclose the preferred stock intention to make any such offer, sale, pledge, disposition or such substantially similar securities filing, without the prior written consent of the CompanyUnderwriters, except for issuances pursuant to the offering exercise or conversion of stock options, restricted stock or restricted stock units, or performance shares or convertible notes outstanding on the Securitiesdate of this Agreement, grants of employee stock options, restricted stock or restricted stock units, or performance shares pursuant to the terms of a plan in effect on the date of this Agreement, issuances pursuant to the exercise or conversion of such stock options, restricted stock or restricted stock units, or performance shares, the filing of registration statements on Form S-8 and amendments thereto in connection with such stock options, restricted stock or restricted stock units, or performance shares or the Company’s employee stock purchase plans in existence on the date of this Agreement, issuances pursuant to direct stock purchase or dividend reinvestment plans in place on the date of this Agreement and the issuances pursuant to any direct stock purchase plan that replaces the Company’s current dividend reinvestment plan.
(j) The Company will comply with all applicable securities and other lawsuse its best efforts to list, rules and regulations, including, without limitationsubject to notice of issuance, the Sarbanes Oxley Act Shares on the New York Stock Exchange.
(k) In connection with the offering of 2002the Shares, until the Underwriters shall have notified the Company of the completion of the sale of the Shares, the Company will not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Shares or attempt to induce any person to purchase any Shares or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Shares.
(kl) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterShares.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatUnderwriters:
(a) Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object; provided however, that the foregoing requirement will not apply to any of the Company’s quarterly filings with the Commission required to be filed pursuant to the Exchange Act. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable approved by the Underwriters, such approval not to the Representative be unreasonably withheld, with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Underwriters of such timely filing. The Company will promptly advise the Representative Underwriters (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act; (v) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act and (vvi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheetuse its reasonable best efforts to list, containing solely a description subject to notice of final terms of issuance, the Securities and Shares on the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleExchange.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b)Closing Date, 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 therein, in the light of the circumstances under which they were made at such time or the circumstances then prevailing, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative Underwriters so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) subject to the first sentence of paragraph (a) of this Section 6, amend or supplement the Disclosure Package to correct such statement or omission, omission or to effect such compliance; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Underwriters of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As soon as reasonably practicable, the Company will make generally available to its security holders and to the Representative a consolidated Underwriters an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the The Company will furnish to the Representative Underwriters and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Underwriters may reasonably request, but, in each case, excluding any document incorporated by reference therein. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(g) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such jurisdictions within the United States as the Representative Underwriters may reasonably designate, request and will maintain such qualifications in effect so long as reasonably required for the distribution of the SecuritiesShares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or where it would be subject to taxation as a foreign corporation or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesShares, in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(h) During a period of 30 days from the date of the Final Prospectus, the Company will not, without the prior written consent of the Underwriters, directly or indirectly, (i) offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction to dispose (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by it or any of its affiliates) of any common shares of the Company, or any securities convertible into, or exercisable or exchangeable for common shares of the Company, or file (or participate in the filing) of a registration statement with the Commission in connection therewith, under the Act, or publicly announce an intention to effect any such transaction or (ii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the Commission promulgated thereunder with respect to the common shares of the Company. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any common shares issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding at the time that this Agreement is executed, (C) any grants of stock options, restricted stock, notional units or other equity securities to employees, directors or contractors pursuant to the terms of any plan in effect at the time that this Agreement is executed, issuances of common shares of the Company pursuant to the exercise of such options or the exercise of any other employee stock options or units outstanding at the time that this Agreement is executed, (D) any common shares issued by the Company pursuant to any non-employee director stock plan or dividend reinvestment plan in effect at the time that this Agreement is executed, and (E) any registration statement on Form S-8 under the Act with respect to the foregoing clauses (B), (C) and (D).
(i) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeUnderwriters, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and the offering thereofany electronic road show. Any such free writing prospectus consented to by the Representative Underwriters or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ij) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will notnot take, without the prior written consent of Citigroup Global Markets Inc.directly or indirectly, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is action designed to, or that would constitute or that might reasonably be expected to, result in cause or result, under the disposition (whether by actual disposition or effective economic disposition due to cash settlement Exchange Act or otherwise) by , in stabilization or manipulation of the Company or price of any affiliate security of the Company to facilitate the sale or any person in privity with the Company or any affiliate resale of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesShares.
(jk) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its commercially reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kl) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the delivery of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states, Japan, the provinces of Canada and any other jurisdictions specified pursuant to Section 6(g) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification; provided that such fees and expenses of counsel shall not exceed $15,000); (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the transportation and other expenses incurred by the Company in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) except as otherwise specified herein, all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(m) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as (without giving effect to the activities of proviso therein) and in any Underwriterevent prior to the Closing Date.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatPurchaser as follows:
(a) Prior During the period from the date of this Agreement to the termination Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true as of the offering Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date.
(b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the The Company will not permit any of its Affiliates to, nor will it permit any person acting on its behalf (iother than the Purchaser) notify promptly the Representative so to, resell any Securities that have been acquired by 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 requestthem.
(d) IfThe Company will not permit any of its Affiliates, at or any time when a prospectus relating person acting on its behalf, to engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestSecurities.
(e) As soon as practicable, the The Company will not permit any of its Affiliates, or any person acting on its behalf, to, directly or indirectly, make generally available offers or sales of any security, or solicit offers to its security holders and to buy any security, under circumstances that would require the Representative a consolidated earnings statement or statements registration of any of the Company and its subsidiaries, which will satisfy Securities under the provisions of Section 11(a) of the Act and Rule 158Securities Act.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay not permit any of its Affiliates, or any person acting on its behalf, to engage in any form of “general solicitation or general advertising” (within the expenses meaning of printing Regulation D) in connection with any offer or other production sale of all documents relating to any of the offering that are required to be prepared, furnished or delivered by the CompanySecurities.
(g) The Company will arrange, if necessary, for the qualification So long as any of the Securities for sale are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution section 6 of the Securities; provided that Exchange Act or quoted in no event shall a U.S. automated interdealer quotation system, (ii) the Company shall not be obligated an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suitsbe, other than those arising out registered under section 8 of the offering or sale Investment Company Act and (iii) the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3).
(h) The Company shall furnish to (i) the holders and subsequent holders of the Securities, (ii) ICONS, Ltd. (at Xxxxxx Finance Limited, PO Box 1093 GT, Queensgate House, South Church Street, Grand Cayman, Cayman Islands, or such other address as designated by ICONS, Ltd.) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by ICONS, Ltd.), a duly completed and executed certificate in any jurisdiction where it is the form attached hereto as Annex D, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not now so subjectlater than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company.
(i) The Company agrees thatshall, unless during any period in which it has obtained is not subject to and in compliance with section 13 or will obtain, as the case may be, the prior written consent 15(d) of the RepresentativeExchange Act, or it is not exempt from such reporting requirements pursuant to and (iiin compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent holder of the Company, it has not made Securities 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” each prospective purchaser (as defined in Rule 405designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be filed provided by Rule 144A(d)(4) under the Securities Act. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description benefit of the final terms Purchaser, the holders of the Securities and the offering thereof. Any such free writing prospectus consented to prospective purchasers designated by the Representative or the Company is hereinafter referred Purchaser and such holders, from time to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treattime, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other lawsnot, rules and regulations, includinguntil one hundred eighty (180) days following the Closing Date, without limitationthe Purchaser’s prior written consent, the Sarbanes Oxley Act of 2002offer, and use its best efforts sell, contract to cause the Company’s directors and officerssell, in their capacities as such, grant any option to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not takepurchase or otherwise dispose of, directly or indirectly, (i) any action designed to Securities or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security other securities of the Company having terms substantially identical to facilitate the sale Securities other than as contemplated by this Purchase Agreement or resale (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities of the Securities, except that the Company makes no agreement as having terms substantially identical to the activities of any UnderwriterSecurities.
Appears in 1 contract
Samples: Purchase Agreement (Amcomp Inc /Fl)
Agreements of the Company. The Company hereby agrees with the several Underwriters thatInitial Purchasers as follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly To advise the Representative Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any notice objecting to its use Notes for offering or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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(d) 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 purpose. The purpose and (ii) of any proposal to amend or supplement the Offering Document and the Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have not effect such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheetsupplementation without UBS’ consent, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) which consent shall not be unreasonably withheld or delayed. If, at any time prior to the filing completion of the Final Prospectus pursuant to Rule 424(b)resale of the Notes by the Initial Purchasers, any event occurs as a result of which the Disclosure Package Offering Document 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 at such time made, not misleading, the Company promptly will (i) notify UBS of such event and promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplementedwill prepare, (ii) amend at its own expense, an amendment or supplement the Disclosure Package to which will correct such statement or omission. Neither UBS’ consent to, nor the Initial Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 9. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or exemption of any 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) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, any documents incorporated by reference therein, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request at any time prior to the completion of the resale of the Notes by the Initial Purchasers. Subject to the Initial Purchasers’ compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, any documents incorporated by reference therein, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(iiic) supply If, at any time prior to the completion of the resale of the Notes by the Initial Purchasers, any event shall occur or condition shall exist as a result of which, in the opinion of counsel to the Initial Purchasers, it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances when such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement the Offering Memorandum to 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.
(d) If, at any time when a prospectus relating Prior to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied sale of all Notes pursuant to Rule 172)Exempt 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply cooperate with the Act or Initial Purchasers and counsel to the Exchange Act or the respective rules thereunder, including Initial Purchasers in connection with use the registration or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities Notes for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions within the United States as the Representative Initial Purchasers may reasonably designate, will maintain request and 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 the Company shall not 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 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 in which it is not now so subject.
(e) So long as the Notes are outstanding, (i) The Company agrees that, unless it has obtained to mail or will obtain, make generally available as soon as practicable after the case may be, end of each fiscal year to the prior written consent record holders of the RepresentativeNotes a financial report of the Company 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, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders’ equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company’s independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each Underwriterquarterly period (except for the last quarterly period of each fiscal year) to such holders, severally a consolidated balance sheet, a consolidated statement of operations and not jointlya consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, agrees if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the Company that, unless it has obtained or will obtain, corresponding periods of the preceding year.
(f) So long as the case may beNotes are outstanding, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed other communications furnished by the Company to its security holders or furnished to or filed with the Commission or retained any national securities exchange on which any class of securities of the Company is 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 Notes remain outstanding and during any period in which the Company is 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 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.
(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 reasonable expenses incident to the performance of the obligations of the Company under Rule 433this Agreement, including: (i) the reasonable fees, disbursements and expenses of counsel to the Company and accountants of the Company in connection with the sale and delivery of the Notes 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 Memorandum, the Offering Memorandum 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 them in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the 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 in connection with the offering, purchase, sale or delivery of the Securities (other than the Final Term Sheet described above fees, disbursements and expenses of counsel to the Initial Purchasers, except as provided in clause (iv) below), (iv) all expenses in connection with the registration or other free writing prospectuses containing solely a description of the final terms qualification of the Securities for offer and sale under the offering thereof. Any such free writing prospectus consented to by the Representative securities or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate Blue Sky laws of the Company several states and all costs of printing or producing any person preliminary and supplemental Blue Sky memoranda in privity with the Company or any affiliate of the Company), directly or indirectly, connection therewith (including the filing (or participation in the filing) fees and reasonable fees and disbursements of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable counsel for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, Initial Purchasers in their capacities as such, to comply connection with such lawsregistration or qualification and memoranda relating thereto), rules and regulations, including, without limitation, (v) the provisions cost of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of printing certificates representing the Securities, except that (vi) all expenses and listing fees in connection with the Company makes no agreement as to application for quotation of the activities Notes in the National Association of any Underwriter.Securities Dealers, Inc.
Appears in 1 contract
Samples: Purchase Agreement (Invitrogen Corp)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the Act and (v) of the receipt by the Company 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. If required by Rule 430B(h) under the Securities Act, Company will prepare a form of prospectus in a form approved by the Underwriters and to file such form of prospectus pursuant to Rule 424(b) under the Securities Act not later than may be required by Rule 424(b) under the Securities Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Underwriters promptly after reasonable notice thereof. The Company will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 which, in the opinion of counsel to the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) amend or supplement the Disclosure Package or file under the Exchange Act any documents incorporated by reference therein in order to comply with the Act or the Exchange Act to correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriter a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event occurs occurs, as a result of which which, in the Final opinion of counsel to the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(f) Upon request, the The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(g) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject itself to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(ih) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.Xxxxxxx Xxxxx & Co. LLC, offer, sell, sell or contract to sell, pledge, pledge or otherwise dispose of of, (or enter into any transaction which that 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 Affiliate of the Company or any person in privity with the Company or any affiliate Affiliate of the Company), ) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securitiesother shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock (“Related Securities”); or publicly announce an intention to effect any preferred such transaction, for a period of 90 days after the date of the Underwriting Agreement. The foregoing sentence shall not apply to (A) any shares of Common Stock issued by the Company upon the exercise of options to purchase shares of Common Stock or upon the vesting of restricted stock awards, in each case disclosed in the Disclosure Package and the Prospectus, (B) the grant of awards pursuant to employee benefit plans or arrangements described in the Disclosure Package and the Prospectus, (C) the issuance or grant of shares of Common Stock (including in connection with the settlement of restricted stock unit awards), restricted stock awards, options to purchase shares of common stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securitiesstock-based awards, in each case, to be registered pursuant to any registration statement on Form S-8 pursuant to employee benefit plans or arrangements described in the Disclosure Package and the Prospectus, (D) the issuance of shares of Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition or (E) the issuance of shares of Common Stock, of restricted stock awards or of options to purchase shares of Common Stock, in each case, in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case that are substantially similar of immediately preceding clauses (D) and (E), the aggregate number of restricted stock awards and shares of Common Stock issued in connection with, or issuable pursuant to the Preferred Stockexercise of any options issued in connection with, or any securities convertible into or exchangeable for the preferred stock or all such substantially similar securities acquisitions and other transactions does not exceed 5% of the Company, except for aggregate number of shares of common stock outstanding immediately following the consummation of the offering of the SecuritiesSecurities and the recipient of the shares of Common Stock agrees in writing to be bound by the same terms described in the agreement attached hereto as Exhibit A.
(i) [Reserved].
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act any of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company subsidiaries will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company or any of its subsidiaries to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities; (iv) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (v) the sales and delivery of the Securities by the Selling Stockholders; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(g) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (vii) [reserved]; (viii) any filings required to be made with the FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $25,000; (ix) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (x) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (xi) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (k) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”).
(l) [Reserved].
(m) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Company makes no agreement as prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the activities Representative before first use. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the period a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities).
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and upon request will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings Representatives an earning statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative Representatives and 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule III hereto and the offering thereofany electronic road show. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might would 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock other shares of Common Stock or any other securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may (i) issue and sell the Securities being offered pursuant to this Agreement, (ii) issue and sell Common Stock pursuant to any employee or director equity compensation or incentive plan, stock ownership or purchase plan or dividend reinvestment plan of the CompanyCompany in effect at the Execution Time, (iii) issue Common Stock issuable upon the conversion of securities (including the issuance of Class A Common Stock upon the conversion of Class B Common Stock), the exercise of warrants or options or the vesting of restricted stock outstanding at the Execution Time, including any backup undertaking Target restricted shares and restricted share units outstanding at the time of such preferred stock or other securitiesthe closing of the Merger that were granted under the Target’s 2008 Omnibus Stock Incentive Plan and/or 2009 Omnibus Stock Incentive Plan and will be converted into comparable equity awards in respect of Common Stock, in each case that are substantially similar to the Preferred (iv) issue Common Stock, or any securities convertible into into, or exercisable, or exchangeable for for, shares of Common Stock, in connection with one or more acquisitions; provided that, in the preferred stock or case of this clause (iv), (x) each recipient of Common Stock shall have, prior to any such substantially similar securities issuance, entered into a written lock-up agreement that is identical in all material respects with this Section 5(h) with respect to the then-remaining portion of the Company, except for the offering lock-up period and (y) any such issuance does not exceed 10% of the SecuritiesCommon Stock outstanding at the Execution Time, (v) issue tangible equity units and the shares of Common Stock issuable upon settlement thereof in the Units offering as described in the Disclosure Package and the Final Prospectus, (vi) issue and sell Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock in connection with the issuance to Carlyle or its affiliates of convertible preferred shares pursuant to the Investment Agreement, including such shares that may be issued upon conversion of such convertible preferred shares, as described in the Disclosure Package and the Final Prospectus, and (vii) file any registration statements with the Commission in connection with Carlyle’s and its affiliates’ registration rights under the Registration Rights Agreement entered into in connection with the Investment Agreement as described in the Disclosure Package and the Final Prospectus. Notwithstanding the foregoing, if (x) during the last 17 days of such restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event unless the Representatives waive in writing such lock-up restriction. The Company will provide the Representatives and each individual subject to the restricted period pursuant to the lockup letters described in Section 7(k) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(i) The Company will not, without the prior written consent of the Representatives, release Carlyle from its lock-up obligations under the Investment Agreement or waive any of the transfer restrictions thereunder.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, not use the Sarbanes Oxley Act proceeds of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions this offering or of the Sarbanes Oxley Act Units offering to repay or redeem any existing indebtedness of 2002the Company or the Target, other than, for the avoidance of doubt, any redemption or repurchase of the Units and any separate purchase contracts and separate amortizing notes permitted pursuant to the terms thereof.
(k) The Company has not taken, and will not take, directly or indirectly, any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that, except that as provided in this Section 5(k), and Sections 8 and 9 hereof, the Company makes no agreement as to Underwriters will pay all of their own costs and expenses, including the activities fees and disbursements of their counsel, and any Underwriteradvertising expenses connected with any offers they may make.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the several Underwriters thatPlacement Agent as follows:
(a) Prior The Company will not, during such period as the Prospectus is required by law to be delivered in connection with sales of the Securities by the Company or a dealer, file any amendment or supplement to the termination Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the offering filing thereof and the Placement Agent shall not have objected thereto in good faith and on reasonable grounds.
(b) During the term of the Securitiesthis Agreement, the Company will not file any amendment of notify the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing Placement Agent promptly, and will not file any confirm such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectusadvice in writing, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall have been filed or become becomes effective, (iiiii) of any request by the Commission for amendments or its staff for any amendment of supplements to the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose and or the threat thereof, (viv) of the receipt by happening of any event that in the judgment of the Company of makes any notification with respect to the suspension of the qualification of the Securities for sale statement made in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment the Prospectus untrue or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description that requires the making of final terms of any changes in the Securities and Registration Statement or the offering thereof, Prospectus in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 order to make the statements therein therein, in the light of the circumstances under in which they were made at such time are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement during the term of this Agreement, the Company will (i) notify promptly make every reasonable effort to obtain the Representative so that withdrawal of such order at the earliest possible moment. During the term of this Agreement, if the Company has omitted any use information from the Registration Statement pursuant to Rule 430A of the Disclosure Package may cease until it is amended Rules and Regulations or supplementedhas omitted any information from the Base Prospectus pursuant to Rule 430B or 430C of the Rules and Regulations, (ii) amend the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A, Rule 430B or supplement the Disclosure Package to correct such statement or omission430C, as applicable, and (iii) supply any amendment or supplement to you in notify the Placement Agent promptly of all such quantities as you may reasonably requestfilings.
(dc) If, at The Company will not file any time when a prospectus relating to the Securities is required to be delivered document under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Exchange Act or the Exchange Act or Rules and Regulations before the respective rules thereunder, including in connection with use or delivery termination of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other lawsShares, rules and regulations, includingif such document would be deemed to be incorporated by reference into the Prospectus, without limitationfirst providing a copy of such document to the Placement Agent at least twenty-four (24) hours before the filing, unless the Sarbanes Oxley Act Company reasonably determines that a delay of 2002, and use its best efforts to cause the Company’s directors and officers, twenty-four (24) hours would or could result in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price a violation of any security of the Company to facilitate the sale federal or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriterstate law or applicable regulation.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430A under the 1933 Act and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering thereofof the Securities. The Company will promptly effect the filings required under Rule 424, in a form acceptable to you (the “Final Term Sheet”) manner and to file such term sheet pursuant to Rule 433(d) within the time period required by Rule 424, notify the Representative of the filing thereof, and take such Rulesteps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to the filing be delivered in connection with sales of the Final Prospectus pursuant to Rule 424(b)Securities, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended misleading or supplemented, (ii) to amend or supplement the Disclosure Package to correct such statement or omission, and (iii) supply any amendment or supplement to you Prospectus in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to order that the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall will be necessary necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, file a new registration statement or to amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5such amendment, an amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to comply with such compliancerequirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (iiiii) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus practicable, and (iviii) supply any supplemented Final Prospectus furnish to the Representative in Representative, without charge, such quantities number of copies of such amendment or supplement as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation, to do business become subject to taxation as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of the Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, pledge, sale, contract to sell, grant of any option for the sale of, or other transfer or disposition of any debt securities of the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities of the Company will be made for a period of 30 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(l) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(m) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(n) The Company will use reasonable best efforts to effect the listing of the Notes on Nasdaq within 30 days of the Closing Date.
(o) The Company will use commercially reasonable efforts to ensure the Notes remain rated by a rating organization designated from time to time by the Commission as to being nationally recognized whose status has been confirmed by the activities Securities Valuation Office of any Underwriterthe National Association of Insurance Commissioners.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatPurchaser as follows:
(a) Prior During the period from the date of this Agreement to the termination Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true as of the offering Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date.
(b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the The Company will not permit any of its Affiliates to, nor will it permit any person acting on its behalf (iother than the Purchaser) notify promptly the Representative so to, resell any Securities that have been acquired by 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 requestthem.
(d) IfThe Company will not permit any of its Affiliates, at or any time when a prospectus relating person acting on its behalf, to engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestSecurities.
(e) As soon as practicable, the The Company will not permit any of its Affiliates, or any person acting on its behalf, to, directly or indirectly, make generally available offers or sales of any security, or solicit offers to its security holders and to buy any security, under circumstances that would require the Representative a consolidated earnings statement or statements registration of any of the Company and its subsidiaries, which will satisfy Securities under the provisions of Section 11(a) of the Act and Rule 158Securities Act.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay not permit any of its Affiliates, or any person acting on its behalf, to engage in any form of “general solicitation or general advertising” (within the expenses meaning of printing Regulation D) in connection with any offer or other production sale of all documents relating to any of the offering that are required to be prepared, furnished or delivered by the CompanySecurities.
(g) The Company will arrange, if necessary, for the qualification So long as any of the Securities for sale are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution section 6 of the Securities; provided that Exchange Act or quoted in no event shall a U.S. automated interdealer quotation system, (ii) the Company shall not be obligated an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suitsbe, other than those arising out registered under section 8 of the offering or sale Investment Company Act and (iii) the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3).
(h) The Company shall furnish to (i) the holders and subsequent holders of the Securities, (ii) Dekania Capital Management, LLC (at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other address as designated by Dekania Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Dekania Capital Management, LLC), a duly completed and executed certificate in any jurisdiction where it is the form attached hereto as Annex D, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not now so subjectlater than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company.
(i) The Company agrees thatshall, unless during any period in which it has obtained is not subject to and in compliance with section 13 or will obtain, as the case may be, the prior written consent 15(d) of the RepresentativeExchange Act, or it is not exempt from such reporting requirements pursuant to and (iiin compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent holder of the Company, it has not made Securities 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” each prospective purchaser (as defined in Rule 405designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be filed provided by Rule 144A(d)(4) under the Securities Act. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description benefit of the final terms Purchaser, the holders of the Securities and the offering thereof. Any such free writing prospectus consented to prospective purchasers designated by the Representative or the Company is hereinafter referred Purchaser and such holders, from time to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treattime, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other lawsnot, rules and regulations, includinguntil one hundred eighty (180) days following the Closing Date, without limitationthe Purchaser’s prior written consent, the Sarbanes Oxley Act of 2002offer, and use its best efforts sell, contract to cause the Company’s directors and officerssell, in their capacities as such, grant any option to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not takepurchase or otherwise dispose of, directly or indirectly, (i) any action designed to Securities or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security other securities of the Company having terms substantially identical to facilitate the sale Securities other than as contemplated by this Purchase Agreement or resale (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities of the Securities, except that the Company makes no agreement as having terms substantially identical to the activities of any UnderwriterSecurities.
Appears in 1 contract
Samples: Purchase Agreement (Amcomp Inc /Fl)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the Act and (v) of the receipt by the Company 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 will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event there occurs as a an event, the result of which which, in the opinion of counsel for the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) subject to paragraph (a) of this Section 6, amend or supplement the Disclosure Package to eliminate or correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event there occurs as a an event, the result of which which, in the Final opinion of counsel for the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement that will eliminate or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(d) [Reserved].
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(g) The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gh) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject themselves to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell or contract to sell, pledge (other than on behalf of an Affiliate of the Company) or otherwise dispose of, (or enter into any transaction that 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, including the public filing (or participation in the public filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock (“Related Securities”); or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of the Underwriting Agreement. The foregoing sentence shall not apply to (A) any shares of Common Stock issued by the Company upon the exercise of options to purchase shares of Common Stock, upon the vesting of restricted stock awards or upon the settlement of restricted stock unit awards, in each case disclosed in the Disclosure Package and the Prospectus, (B) the grant of awards pursuant to the Company’s incentive plans or otherwise pursuant to equity compensation arrangements with directors, officers, employees and consultants of the Company and its subsidiaries, in each case, as described in the Disclosure Package and the Prospectus, (C) the issuance or grant of shares of securities, including restricted stock awards, options to purchase shares of common stock, restricted stock units or any other stock-based awards, in each case, registered or to be registered pursuant to any registration statement on Form S-8 pursuant to any benefit plans or arrangements (including, without limitation, employee stock purchase plan), in each case, as described in the Disclosure Package and the Prospectus, (D) the issuance of shares of Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition, (E) the issuance of shares of Common Stock, of restricted stock awards or of options to purchase shares of Common Stock, in each case, in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of immediately preceding clauses (D) and (E), the aggregate number of restricted stock awards and shares of Common Stock issued in connection with, or issuable pursuant to the exercise of any options issued in connection with, all such acquisitions and other transactions does not exceed 5% of the aggregate number of shares of common stock outstanding immediately following the consummation of the offering of the Securities and the recipient of the shares of Common Stock agrees in writing to be bound by the same terms described in the agreement attached hereto as Exhibit A, or (F) the Share Repurchase.
(j) [Reserved].
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (iv) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(h) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (v) the approval of the Securities for book entry transfer by DTC; (vi) any filings required to be made with the FINRA (including filing fees, fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $35,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (viii) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and one counsel for the Selling Stockholders and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (l) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”). Each Selling Stockholder agrees with the Underwriters to pay (directly or by reimbursement) all fees and expenses incident to the performance of such Selling Stockholder’s obligations under this Agreement with respect to stock transfer taxes, stamp duties and other similar taxes incident to the sale and delivery of the Underwritten Securities to be sold by such Selling Stockholder to the Underwriters hereunder. This Section 6(l) shall not affect or modify any separate, valid agreement relating to the allocation of payment of expenses between the Company, on the one hand, and any Selling Stockholder, on the other hand.
(m) [Reserved].
(n) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the offering thereofRepresentatives before first use. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (i) During and will promptly notify the Company if any such proceeding against it is initiated during the period beginning on a prospectus is required by the date hereof and continuing Act to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition delivered (whether by actual disposition physically or effective economic disposition due to cash settlement or otherwise) by through compliance with Rule 172 under the Company Act or any affiliate similar rule) in connection with any sale of the Company or any person in privity with the Company or any affiliate of the CompanySecurities), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior At any time when a prospectus relating to the termination of Notes is required to be delivered under the offering of the Securities1933 Act, the Company will not file or make any amendment of to the Registration Statement or any supplement to any Preliminary the Prospectus (except for periodic or current reports filed under the Final Prospectus 1000 Xxx) unless the Company has furnished each of the Representative Underwriters a copy for their its review prior to filing and will not file given the Underwriters a reasonable opportunity to comment on any such proposed amendment or supplement supplement. Each of the Underwriters shall make its responses thereto, if any, promptly. Immediately following the execution of this Agreement, the Company will prepare a prospectus supplement, in form approved by the Underwriters, setting forth the principal amount of Notes and their terms not otherwise specified in the base prospectus, the Underwriters’ names, the price at which the Notes are to which they reasonably objectbe purchased by the Underwriters from the Company, the principal amount of Notes to be purchased by each Underwriter, the initial offering price, the selling concession and reallowance, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Notes. The Company will promptly cause the Final Prospectus, properly completed, and any supplement thereto, Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) under the 1933 Act Regulations in the manner and within the time period prescribed by such rule and will provide evidence satisfactory to the Representative Underwriters of such timely filing. The Company will promptly advise the Representative Underwriters (i) at any time when a prospectus relating to the Final ProspectusNotes is required to be delivered under the 1933 Act, and when any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall have been filed or become effective, (iiiii) of any request by the Commission or its staff for any post-effective amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening by direct communication with the Company of any proceeding for that purpose purpose, and (viv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening by direct communication with the Company of any proceeding for such purpose. The Company will promptly effect the filing of the Prospectus necessary pursuant to Rule 424(b) under the 1933 Act Regulations and will take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, If at any time prior when a prospectus relating to the filing of Notes is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time not misleadingmade, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus to comply with the 1933 Act or the Exchange 1934 Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such eventUnderwriters, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative Underwriters in such quantities as the Representative Underwriters may reasonably request.
(ec) During the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, (i) the Company will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will furnish to the Underwriters copies of such documents, (ii) on or prior to the date on which the Company makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the 1934 Act, the Company will furnish to the Underwriters the information contained or to be contained in such announcement or document, (iii) the Company will furnish to the Underwriters copies of all other material press releases or announcements to the general public, and (iv) the Company will immediately notify the Underwriters of (a) any decrease in the rating of the Notes or any other debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1000 Xxx) or (b) any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, as soon as the Company learns of any such decrease or notice. Any requirement to furnish documents or information to the Underwriters pursuant to this covenant shall be deemed satisfied by the posting of such documents or information on the Company’s website or the filing thereof with the Commission on EXXXX.
(d) As soon as practicable, but not later than 90 days after the close of the period covered by the earnings statement, the Company will make generally available to its security holders and to the Representative a consolidated Underwriters an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158158 under the 1933 Act.
(fe) Upon requestSo long as the Underwriters are required to deliver a prospectus in connection with sales of the Notes, the Company will furnish to the Representative Underwriters and counsel for the Underwriterstheir counsel, without charge, signed such 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gf) The Company will arrangeendeavor, if necessaryin cooperation with the Underwriters, to arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions within of the United States of America as the Representative Underwriters may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesNotes; provided provided, however, that in no event shall the Company will not be obligated to qualify to do business in file any jurisdiction where it is not now so qualified or to take any action that would subject it general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, to qualify as a foreign limited liability company in any jurisdiction where in which it is not now so subjectqualified.
(g) The Company will apply the net proceeds from the offering of the Notes in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(h) The Company will not, during the period of 30 days from the date on which the Notes are purchased by the Underwriters sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable into or exercisable for the Notes or any debt securities substantially similar to the Notes, without the prior written consent of the Underwriters.
(i) The Company agrees thatshall, unless it has obtained whether or will obtainnot any sale of the Notes is consummated, as pay all expenses incident to the case may beperformance of its obligations under this Agreement, including the fees and disbursements of its accountants and its counsel, the prior written consent cost of printing or other production and delivery of the RepresentativeRegistration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and related documents delivered to the Underwriters, the cost of preparing, printing, packaging and delivering the Notes, the fees and expenses incurred in compliance with Section 4(f) hereof, the fees and disbursements of the Trustee (including legal fees and disbursements, if any, of counsel to the Trustee), the fees of any agency that rates the Notes, and (ii) each Underwriter, severally and not jointly, agrees any fees payable in connection with the Company that, unless it has obtained acceptance of the Notes for clearance and settlement through the facilities of The Depository Trust Company. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or will obtain, as the case may beSection 7(a)(i) hereof, the prior written consent Company shall reimburse the Underwriters for all of the Company, it has not made and will not make any offer their reasonable out-of-pocket expenses relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description offer and sale of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to Notes contemplated by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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 indirectlythis Agreement, including the filing (or participation in the filing) reasonable fees and disbursements of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable counsel for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesUnderwriters incurred in connection therewith.
(j) The Company will comply acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with all applicable securities respect to the offering of Notes contemplated hereby (including in connection with determining the terms of the offering) and other lawsnot as a financial advisor or a fiduciary to, rules and regulations, including, without limitationor an agent of, the Sarbanes Oxley Act Company or any other person. Additionally, no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of 2002the transactions contemplated hereby, and use its best efforts the Underwriters shall have no responsibility or liability to cause the Company with respect thereto. Any review by the Underwriters of the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Sarbanes Oxley Act of 2002.
(k) The Company will Underwriters and shall not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation on behalf of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterCompany.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and upon request will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings Representatives an earning statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative Representatives and 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and the offering thereofany electronic road show. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might would 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock other shares of Common Stock or any other securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may (i) register, issue and sell the Securities being offered pursuant to this Agreement, including the issue of shares of Class A Common Stock issuable pursuant to the Purchase Contract Agreement upon settlement of the Purchase Contracts, (ii) issue and sell Common Stock in the concurrent offering of the Company’s Common Stock as described in the Disclosure Package and the Final Prospectus, (iii) issue and sell Common Stock pursuant to any employee or director equity compensation or incentive plan, stock ownership or purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time, (iv) issue Common Stock issuable upon the conversion of securities (including the issuance of Class A Common Stock upon the conversion of Class B Common Stock), the exercise of warrants or options or the vesting of restricted stock outstanding at the Execution Time, including any backup undertaking Target restricted shares and restricted share units outstanding at the time of such preferred stock or other securitiesthe closing of the Merger that were granted under the Target’s 2008 Omnibus Stock Incentive Plan and/or 2009 Omnibus Stock Incentive Plan and will be converted into comparable equity awards in respect of Common Stock, in each case that are substantially similar to the Preferred (v) issue Common Stock, or any securities convertible into into, or exercisable, or exchangeable for for, shares of Common Stock, in connection with one or more acquisitions; provided that, in the preferred stock or case of this clause (v), (x) each recipient of Common Stock shall have, prior to any such substantially similar securities issuance, entered into a written lock-up agreement that is identical in all material respects with this Section 5(h) with respect to the then-remaining portion of the Company, except for the offering lock-up period and (y) any such issuance does not exceed 10% of the SecuritiesCommon Stock outstanding at the Execution Time, (vi) issue and sell Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock in connection with the issuance to Carlyle or its affiliates of convertible preferred shares pursuant to the Investment Agreement, including such shares that may be issued upon conversion of such convertible preferred shares, as described in the Disclosure Package and the Final Prospectus, and (vii) file any registration statements with the Commission in connection with Carlyle’s and its affiliates’ registration rights under the Registration Rights Agreement entered into in connection with the Investment Agreement as described in the Disclosure Package and the Final Prospectus. Notwithstanding the foregoing, if (x) during the last 17 days of such restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event unless the Representatives waive in writing such lock-up restriction. The Company will provide the Representatives and each individual subject to the restricted period pursuant to the lockup letters described in Section 6(k) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(i) The Company will not, without the prior written consent of the Representatives, release Carlyle from its lock-up obligations under the Investment Agreement or waive any of the transfer restrictions thereunder.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, not use the Sarbanes Oxley Act proceeds of 2002, and use its best efforts to cause this offering or of the concurrent offering of the Company’s directors and officers, in their capacities as such, Class A Common Stock to comply with such laws, rules and regulations, including, without limitation, the provisions repay or redeem any existing indebtedness of the Sarbanes Oxley Act Company or the Target, other than, for the avoidance of 2002doubt, any redemption or repurchase of the Units and any separate Purchase Contracts and separate Amortizing Notes permitted pursuant to the terms thereof.
(k) The Company has not taken, and will not take, directly or indirectly, any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that .
(l) The Company agrees to pay the Company makes no agreement as costs and expenses relating to the activities following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any Underwriter.of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities or the Issuable Common Stock; (iv) the printing (or reproduction) and delivery of this Agreement and the other Unit Documents, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities and the Issuable Common Stock on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings);
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d424(b) within the time period required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon If there occurs an event or development as practicablea result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will make generally available to its security holders and to promptly notify the Representative a consolidated earnings so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyomission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances the prevailing, not misleading, the Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will arrangeuse its commercially reasonable efforts, if necessaryin cooperation with the Underwriters, for the qualification of to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions within the United States (domestic or foreign) as the Representative Underwriters may reasonably designate, will designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided provided, however, that in no event the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now otherwise so subject.
(i) The Company agrees thatwill timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable, unless it has obtained or will obtainbut in any event not later than 16 months after the date hereof, as an earnings statement for the case may bepurposes of, and to provide the benefits contemplated by, the prior written consent last paragraph of Section 11(a) of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping1933 Act.
(ij) During the period beginning on from the date hereof and continuing to and including the Closing Datedate that is 90 days after the date of the Prospectus, the Company will notnot sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities or any securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or file or cause to be declared effective a registration statement under the 1933 Act with respect to any of the foregoing, without the prior written consent of Citigroup Global Markets Inc.the Representative, offerwhich may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, sell(ii) borrowings under the Credit Facility, contract to sell, pledge, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in iv) the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) filing by the Company or any affiliate of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company or any person in privity will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company or any affiliate of the Company)will maintain a trustee, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable paying agent and registrar for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(o) During the period when the Prospectus is required to be delivered under the 1933 Act, the Company makes no agreement as will file all documents required to be filed with the Commission pursuant to the activities 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to cause each of the SBIC Funds to continue to comply with the requirements applicable to SBICs and to meet its obligations as an SBIC licensed by the SBA.
(s) The Company and its Subsidiaries shall comply in all material respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act and the Commission’s published rules promulgated thereunder that are applicable to the Company and its Subsidiaries, as applicable.
(t) The Saratoga Entities shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Registration Statement, the Prospectus and General Disclosure Package, and each of the Saratoga Entities shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Company Material Adverse Effect.
(u) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will maintain a trustee, paying agent and registrar for the Notes.
(l) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(n) The Company has obtained an initial no agreement as objections letter and the Underwriters will obtain a final no objection letter from FINRA regarding the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Company will use its reasonable best efforts to effect within thirty (30) days of the activities Closing Date and to maintain the listing of any Underwriterthe Notes on Nasdaq.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters SBI that:
(a) The Company will use its best efforts to cause the Company Registration Statement, if not effective at the Execution Time, and any amendment thereof, to become effective. Prior to the termination of the offering of the SecuritiesDECS, the Company will not file any amendment of the Company Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company Prospectus without SBI's prior consent (which shall not be unreasonably withheld). Subject to the foregoing sentence, if the Company Registration Statement has furnished become or becomes effective pursuant to Rule 430A, or filing of the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company Prospectus is otherwise required under Rule 424(b), the Company will cause the Final Company Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative SBI of such timely filing. The Company will promptly advise the Representative SBI (i) when the Final Company Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Company Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination of the offering of the SecuritiesDECS, any amendment to the Company Registration Statement shall have been filed or become effective, (iiiiv) of any request by the Commission or its staff for any amendment of the Company Registration Statement, Statement or for any supplement to the Final Company Prospectus or for any additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Company Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (vvi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172respect of the offering and sale of the DECS), any event occurs as a result of which the Final Company 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 not misleading, or if it shall be necessary to amend the Company Registration Statement, file a new registration statement Statement or supplement the Final Company Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) as soon as practicable will notify promptly the Representative SBI of such event, event or necessity and (ii) promptly will prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 58, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated SBI an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representative SBI and counsel for the UnderwritersSBI, without charge, signed copies of the Company Registration Statement (including exhibits thereto). The Company will furnish to SBI not later than (A) and to each other Underwriter a copy 6:00 PM, New York City time, on the date of determination of the Registration Statement public offering price of the DECS, if such determination occurred at or prior to 12:00 Noon, New York City time, on such date or (without exhibits theretoB) and6:00 PM, New York City time, on the business day following the date on which the public offering price of the DECS was determined, if such determination occurred after 12:00 Noon, New York City time, on such date, as many copies of each Preliminary Company Prospectus, the Company Prospectus and any supplement thereto as SBI may reasonably request; further, so long as delivery of a prospectus by an Underwriter SBI or any dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172respect of the offering and sale of the DECS), as many copies of any each Preliminary Prospectus, the Final Company Prospectus and any Issuer Free Writing the Company Prospectus and any supplement thereto as the Representative SBI may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be preparedCompany Registration Statement, furnished or delivered by each Preliminary Company Prospectus and the CompanyCompany Prospectus.
(ge) The Company will arrange, if necessary, cooperate with the Trust for purposes of the qualification of the Securities DECS and the Shares for sale under the laws of such jurisdictions within the United States as the Representative SBI may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesDECS and the Shares and will pay the fee of the NASD in connection with its review, if any, of the Company Registration Statement and the offering of the Shares in connection with the offering of the DECS; provided provided, however, that in no event shall connection therewith, the Company shall not be obligated required 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 it file a general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectjurisdiction.
(if) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus for sale, sell or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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)of, directly or indirectly, including or announce the filing (or participation in the filing) of a registration statement with the Commission in respect offering of, or establish file or increase a put equivalent position or liquidate or decrease a call equivalent position within cause the meaning filing of Section 16 any registration statement under the Act with respect to, any shares of common stock of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Company or any securities convertible into or exchangeable for the preferred for, or warrants to acquire, shares of common stock or such substantially similar securities of the Company for a period of 90 days after the date of the Company Prospectus without SBI's prior written consent; provided, however, that the foregoing shall not restrict the ability of the Company to take any of the foregoing actions in connection with (i) the offering by the Trust of the DECS or any delivery of Shares pursuant to the terms of the DECS, (ii) the offering by certain of the Sellers and others of up to 2,040,000 Shares as described in the Company Registration Statement or (iii) in connection with any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the date of the Company Prospectus.
(g) The Company will furnish the Trust in sufficient quantities for transmission to holders of the DECS the Company, except for 's annual report to shareholders and reports on Forms 10-K and 10-Q as soon as practicable after such reports are required to be filed with the Commission.
(h) The Company will take such actions as may be reasonably necessary to comply with the rules and regulations of the NYSE in respect of the offering of the SecuritiesShares contemplated hereby.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Decs Trust)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d424(b) within the time period required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon If there occurs an event or development as practicablea result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will make generally available to its security holders and to promptly notify the Representative a consolidated earnings so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyomission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances the prevailing, not misleading, the Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will arrangeuse its commercially reasonable efforts, if necessaryin cooperation with the Underwriters, for the qualification of to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions within the United States (domestic or foreign) as the Representative Underwriters may reasonably designate, will designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided provided, however, that in no event the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now otherwise so subject.
(i) The Company agrees thatwill timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable, unless it has obtained or will obtainbut in any event not later than 16 months after the date hereof, as an earnings statement for the case may bepurposes of, and to provide the benefits contemplated by, the prior written consent last paragraph of Section 11(a) of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping1933 Act.
(ij) During the period beginning on from the date hereof and continuing to and including the Closing Datedate that is 90 days after the date of the Prospectus, the Company will notnot sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities or any securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or file or cause to be declared effective a registration statement under the 1933 Act with respect to any of the foregoing, without the prior written consent of Citigroup Global Markets Inc.the Representative, offerwhich may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, sell(ii) borrowings under the Credit Facility, contract to sell, pledge, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in iv) the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) filing by the Company or any affiliate of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company or any person in privity will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company or any affiliate of the Company)will maintain a trustee, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable paying agent and registrar for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(o) During the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to cause each of the SBIC Funds to continue to comply with the requirements applicable to SBICs and to meet its obligations as an SBIC licensed by the SBA.
(s) The Company and its Subsidiaries shall comply in all material respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act and the Commission’s published rules promulgated thereunder that are applicable to the activities Company and its Subsidiaries, as applicable.
(t) The Saratoga Entities shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Registration Statement, the Prospectus and General Disclosure Package, and each of the Saratoga Entities shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Company Material Adverse Effect.
(u) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The In further consideration of the agreements of the Underwriters herein contained, the Company agrees covenants with the several Underwriters thatas follows:
(a) To use its best efforts to cause the Registration Statement, if not effective at the date hereof, and any amendment thereto, to become effective. Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (other than (A) any Preliminary document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference into the Prospectus or and (B) such documents required to be filed during the Final Prospectus period from the date hereof through the Closing Date) unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, Prospectus and any supplement thereto, thereto to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative U.S. Representatives of such timely filing. The Company will promptly advise the Representative U.S. Representatives as promptly as practicable after it shall receive notice or obtain knowledge thereof (i) when the Final Registration Statement, if not effective at the date hereof, and any amendment thereto, shall have become effective, (ii) when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement Statement, including any Rule 462(b) Registration Statement, shall have been filed or become effective, (iiiiv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (vvi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Shares is required under the Securities Act, to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), connection with sales by an underwriter or dealer 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective applicable rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company as promptly as practicable will (i) notify promptly the Representative of such event, (ii) U.S. Representatives and prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5Article VII, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, .
(iiic) use its best efforts to have any amendment to Commencing within three months after the Effective Date of the Registration Statement or new registration statement declared effective Statement, as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will to make generally available to its security holders and to the Representative a consolidated earnings U.S. Representatives an earning statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(fd) Upon request, the Company will To furnish to the Representative U.S. Representatives and counsel for the Underwriters, without charge, seven signed 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 in connection with sales by an Underwriter underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative U.S. Representatives may reasonably request. The Company will pay Copies of the expenses of printing or other production of all documents relating Registration Statement and each amendment thereto, and the Prospectus furnished to the offering that are required Underwriters will be identical to be preparedthe electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, furnished or delivered except to the extent permitted by the Company.Regulation S-T.
(ge) The Company will arrange, if necessary, for To use its best efforts to qualify the qualification of the Securities Shares for sale under the laws of such jurisdictions within in the United States as the Representative U.S. Representatives may reasonably designate, will to maintain such qualifications in effect so long as required for the distribution of the Securities; provided Shares and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with any review of the offering of the Shares by the National Association of Securities Dealers, Inc. (the "NASD"), except that in no event shall the Company shall not be obligated required in connection therewith to qualify as a foreign corporation, to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out any state or otherwise to subject itself to taxation in connection with any such qualification; and will arrange for the determination of the offering legality of the Shares for purchase by institutional investors.
(f) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto (including any post-effective amendment thereto) and the preparation, the printing and delivery to the Underwriters of copies of any preliminary prospectus and the Prospectus and any amendments or supplements thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any Agreement Among Underwriters to which the Company is a party, the Custody Agreement and such other documents as may be required in connection with the offering, purchase, sale or delivery of the Shares, (iii) the preparation, issuance and delivery of certificates for the Shares to the Underwriters, (iv) the fees and disbursements of the Company's counsel, accountants and other advisors, (v) the qualification of the Shares under securities laws in accordance with the provisions of paragraph (e) of this Article VII, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the filing of trade reports in the provinces of Canada, if any, including filing fees and fees and disbursements of Canadian counsel for the Underwriters in connection therewith, (vii) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, the review, if any, by the NASD of the terms of the sale of the SecuritiesShares, (viii) the costs and expenses of the Company relating to investor presentations or any "road show" undertaken in connection with the marketing of the offering, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as consultants engaged in connection with the case may be, road show presentations with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent approval of the Company, it has not made travel and will not make lodging expenses of the representatives and officers of the Company and any offer relating to such consultants, and the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed cost of any aircraft chartered by the Company in connection with the Commission road show, (ix) the costs and charges of any transfer agent, registrar or retained by the Company under Rule 433depositary, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description (x) costs and charges of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus Custodian and (2xi) it has complied fees and will comply, as disbursements of foreign counsel to the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingCompany.
(ig) During If the period beginning sale of the Shares provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Article VI hereof is not satisfied, because of any termination pursuant to Article XI hereof or because of any refusal, inability or failure on the date part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters or the Selling Shareholders, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and continuing to disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and including sale of the Shares.
(h) On the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledgeshall deliver, or otherwise dispose of (or enter into any transaction which is designed tocaused to be delivered, 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred StockSelling Shareholders the opinions and the comfort letter, or any securities convertible into or exchangeable for dated the preferred stock or such substantially similar securities of Closing Date, referred to in Article VI. Such opinions and the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably comfort letter shall be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as addressed to the activities of any UnderwriterSelling Shareholders.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) a Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment or supplement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any shares of Preferred Stock of the Company agrees thator other securities convertible into or exchangeable or exercisable for shares of Preferred Stock or derivative of Preferred Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, unless directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representative. Notwithstanding the foregoing, if (i) during the last 17 days of the 60-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 60-day restricted period, the Company announces that it has obtained will release earnings results during the 16-day period following the last day of the 60-day restricted period, then in each case the restrictions imposed by this Agreement will continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or will obtainthe occurrence of material news or a material event relating to the Company, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securitieswaives, in each case that are substantially similar to the Preferred Stockwriting, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesextension.
(j) The Company will comply with all applicable securities has caused certain of its executive officers and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions each director of the Sarbanes Oxley Act Company to furnish to the Representative, on or prior to the date of 2002this agreement, a letter or letters, substantially in the form attached hereto as Exhibit C (the “Lockup Agreement”).
(k) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Preferred Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company and the Underwriters will obtain a no agreement as to objection letter from FINRA regarding the activities fairness and reasonableness of any Underwriterthe underwriting terms and arrangements.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters Underwriters, the Forward Purchasers and the Forward Sellers that:
(a) Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to (including the Prospectus or any Preliminary Prospectus or Prospectus) to the Final Prospectus Registration Statement unless the Company has furnished you, the Representative Forward Purchasers and the Forward Sellers a copy for their your, the Forward Purchasers’ and the Forward Sellers’ review prior to filing and will not file any such proposed amendment or supplement to which they you, the Forward Purchasers or the Forward Sellers reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives, the Forward Purchasers and the Forward Sellers of such timely filing. The Company will promptly advise the Representative Representatives, the Forward Purchasers and the Forward Sellers (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent Upon the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement andStatement, upon such issuance, occurrence or notice of objection, the Company will promptly use its best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative Representatives, the Forward Purchasers and the Forward Sellers so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented, ; (ii) amend or supplement the Pricing 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.
(dc) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if for any other reason it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative Representatives, the Forward Purchasers and the Forward Sellers of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request. Following the First Closing Date and, for as long as a prospectus relating to the Shares is required to be delivered under the Securities Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps, including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Shares by the Underwriters (and references herein to the Registration Statement shall include any such amendment or new registration statement).
(ed) As soon as practicable, and in any event not later than 16 months after the date hereof, the Company will make generally available to its security holders and to the Representative a consolidated Representatives, the Forward Purchasers and the Forward Sellers an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representative Representatives, the Forward Purchasers and the Forward Sellers and counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives, the Forward Purchasers and the Forward Sellers may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the Representatives 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 complete the distribution of the Shares; provided that are 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 preparedrequired to so qualify, furnished (ii) file a general consent to service of process in any such jurisdiction or delivered by the Company(iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., BofA Securities, Inc., the Forward Sellers and the Forward Purchasers, offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might reasonably be expected to, 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities shares of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Common Stock or any securities convertible into into, or exercisable for, shares Common Stock; or publicly announce an intention to effect any such transaction, until the date set forth on Schedule I hereto, provided, however, that the Company may issue and sell Common Stock and securities convertible or exchangeable for the preferred into Common Stock pursuant to any equity incentive plan, employee stock option plan, stock ownership plan, direct stock purchase plan or such substantially similar securities dividend reinvestment plan of the CompanyCompany in effect at the Applicable Time, except for the offering Company may issue Common Stock issuable upon the conversion of securities or the Securitiesexercise of warrants outstanding at the Applicable Time, the Company may issue, sell or deliver any Company Shares pursuant to Section 2(a)(iv) or Section 15 hereof and the Company may issue, sell or deliver any shares of Common Stock pursuant to the Forward Sale Agreements or any Additional Forward Sale Agreements.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kh) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under in the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company in a manner that would violate the Securities Act or the Exchange Act.
(i) The Company agrees to facilitate pay the sale costs and expenses relating to the following matters: (i) the preparation, printing or resale reproduction and filing with the Commission of the SecuritiesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act and the listing of any Company Shares and the Issuable Shares on the New York Stock Exchange; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount that is not greater than $7,500); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters, the Forward Sellers and the Forward Purchasers relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder; provided that, except as specifically provided in Section 7, Section 8 and this Section 5(A)(i), the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel and the expenses of advertising any offering of the Shares made by the Underwriters.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, the Forward Sellers and the Forward Purchasers, and each Underwriter agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the Company makes no agreement as prior written consent of the parties hereto shall be deemed to the activities have been given in respect of any UnderwriterIssuer Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives, the Forward Sellers, the Forward Purchasers or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(k) The Company will use commercially reasonable efforts to effect and maintain the listing of the Company Shares and the Issuable Shares on the New York Stock Exchange.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Debt Securities and of the offering, in the form attached as Schedule III hereto, will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Representatives promptly of such filing. The Company will prepare the Prospectus, in a form approved by the Representatives, will file the Prospectus pursuant to Rule 424(b) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the termination Debt Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representatives (i) when any amendment to the Registration Statement shall have become effective, (ii) when any subsequent amendment or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and (iv) of the offering issuance by the Commission of any stop order or of any order preventing or suspending the use of the SecuritiesProspectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Debt Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Debt Securities is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or (including documents deemed to be incorporated by reference into the Final Prospectus Prospectus) unless the Company has furnished to the Representative Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they the Representatives reasonably object. The Company will cause In the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) event of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by post-effective amendment thereto, the Company 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 will promptly take such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, steps including, if necessarywithout limitation, by filing an amendment to amending the Registration Statement or filing a new registration statement statement, at its own expense, as may be necessary to permit offers and using its best efforts sales of the Debt Securities by the Underwriters (and references herein to have the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Debt Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file with the Commission an amendment or supplement or new registration statement to the Prospectus which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment as the case may be, and furnish to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use Underwriters a reasonable number of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestcopies thereof.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Representatives may reasonably request.
(e) The Company will not make any offer relating to the Debt Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representatives and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Representatives may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Debt Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Debt Securities; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent shall not for a period of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on 5 days following the date hereof and continuing to and including the Closing Date, the Company will notof this Agreement, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, sell or contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including or announce the filing offering of) any long-term debt securities (or participation in the filing) of a registration statement with the Commission in respect ofother than borrowings under its $250 million revolving credit facility, as it may be amended, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities successor credit facility of the Company, including any backup undertaking of such preferred stock ) issued or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of guaranteed by the Company, except for other than the offering of the Debt Securities., or publicly announce an intention to effect any such transaction;
(ji) The Company will comply with obtain or make prior to the issuance of the Debt Securities all applicable securities regulatory and other lawsgovernmental approvals, rules consents, authorizations, orders, filings and regulationsregistrations necessary for the issuance of the Debt Securities, including, without limitation, the Sarbanes Oxley Act any required approvals, consents, authorizations, orders, filings and registrations of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002The New Mexico Public Regulation Commission.
(kj) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the offering of the Debt Securities.
(k) The Company will use the proceeds from the sale or resale of the Securities, except that Debt Securities for only the Company makes no agreement as to purposes described in the activities of any UnderwriterProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Southwestern Public Service Co)
Agreements of the Company. The Company agrees with the several Underwriters thatRepresentatives:
(a) Prior If necessary, to (i) file (A) an amendment to the termination of the offering of the SecuritiesRegistration Statement, the Company will not file any (B) a post-effective amendment of to the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to Rule 430A under the applicable paragraph Act or (C) a new or additional registration statement pursuant to Rule 462(b) or (c) under the Act, in each case, as soon as practicable after the execution and delivery of Rule 424(bthis Agreement; (ii) within the time period prescribed and will provide evidence satisfactory to the Representative Underwriters of such timely filing. The Company will promptly ; and (iii) use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time.
(b) To comply fully and in a timely manner with the applicable provisions of Rule 424, Rule 430A and Rule 462 under the Act.
(c) To advise the Representative Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Final Prospectus, Registration Statement has become effective and when any supplement thereto, shall have been filed with the Commission pursuant post-effective amendment to Rule 424(b)it becomes effective, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of amendments to the Registration Statement, Statement or for any supplement amendments or supplements to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the or qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or the institution or threatening initiation of any proceeding for such purposepurposes, and (iv) of the happening of any event during the period referred to in paragraph (f) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, or of the necessity to amend or supplement the Registration Statement or Prospectus (as then amended or supplemented) to comply with the Act or any other law. The If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts make every reasonable effort to prevent obtain the issuance withdrawal or lifting of any such stop order or at the occurrence of any such suspension or objection earliest possible time.
(d) To furnish to the use Representatives, without charge, a signed copy of the Registration Statement andas first filed with the Commission and each amendment to it, upon including all exhibits and documents incorporated therein by reference, and to furnish to the Representatives such issuancenumber of conformed copies of the Registration Statement as so filed and of each amendment to it, occurrence without exhibits, as the Representatives may reasonably request.
(e) Not to file any amendment or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment supplement to the Registration Statement Statement, whether before or a new registration statement and using its best efforts after the time when it becomes effective, to have such make any amendment or new registration statement declared effective as soon as practicablesupplement to the Prospectus or to make any filing with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act of which (i) the Representatives shall not previously have been advised or (ii) to which the Representatives shall reasonably object, unless the Company reasonably determines, based on the advice of counsel, that such filing is necessary to comply with all applicable rules and regulations.
(bf) The Company will prepare Promptly after the Registration Statement becomes effective, and from time to time thereafter for such period as a final term sheetprospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, containing solely a description of final terms to furnish to each Underwriter as many copies of the Securities Prospectus (and of any amendment or supplement to the offering thereof, in a form acceptable to you (the “Final Term Sheet”Prospectus) and to file as such term sheet pursuant to Rule 433(d) within the time required by such RuleUnderwriter may reasonably request.
(cg) If, at any time prior to during the filing of the Final Prospectus pursuant to Rule 424(bperiod specified in paragraph (f), any event occurs shall occur as a result of which it becomes necessary to amend or supplement the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary Prospectus 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, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until misleading or if it is amended or supplemented, (ii) necessary to 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunderAct, including in connection with use or delivery of the Final Prospectus, the Company will forthwith to (i) notify promptly the Representative of such event, (iii)(A) prepare and file with the Commissionfile, subject to the second sentence provisions of paragraph (ae) of this Section 5above, with the Commission an appropriate amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement Prospectus or new registration statement declared effective (B) file under the Exchange Act a document to be incorporated by reference in the Prospectus, so that in either case, the statements in the Prospectus, as soon as practicable so amended or supplemented, will not, in order to avoid any disruption in use the light of the Final circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the Act and the Exchange Act, and (ivii) supply any supplemented Final Prospectus furnish to each of the Representative in Representatives, such quantities number of copies of such documents as the Representative such Underwriter may reasonably request.
(eh) As soon as practicable, the Company will make generally available Prior to its security holders and to the Representative a consolidated earnings statement or statements any public offering of the Company and its subsidiariesShares, which will satisfy (i) to cooperate with the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed copies of Underwriters in connection with 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 registration or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions within of the United States as the Representative Representatives may reasonably designaterequest, will maintain (ii) to continue such qualifications registration or qualification in effect so long as required for the distribution of the SecuritiesShares and (iii) 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 the Company shall not be obligated required to qualify to do business in any jurisdiction as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suitssuits or taxation, other than those arising out of as to matters and transactions relating to the offering or offer and sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(i) The Company agrees thatWhether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, unless it has obtained or will obtainto pay all costs, as expenses, fees and taxes incident to (i) the case may bepreparation, printing, filing and distribution to the prior written consent Underwriters of the RepresentativeRegistration Statement (including financial statements and exhibits), each preliminary prospectus and all amendments and supplements to any of them prior to or during the period specified in paragraph (f); (ii) each Underwriter, severally the printing and not jointly, agrees with delivery to the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent Underwriters of the CompanyProspectus and all amendments or supplements to it during the period specified in paragraph (f); (iii) the transfer and delivery of the Shares to the Underwriters, it has not made including any transfer or other taxes payable thereon; (iv) the printing and will not make delivery of this Agreement and the preliminary and final blue sky memoranda (including in each case any offer disbursements of counsel for the Underwriters relating to such printing and delivery); (v) the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company registration with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms Shares; (vi) the registration or qualification of the Securities Shares for offer and sale under the offering thereof. Any such free writing prospectus consented to by the Representative securities or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate blue sky laws of the Company or several states and any person in privity with the Company or any affiliate of the Company), directly or indirectly, foreign jurisdiction (including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable reasonable fees and disbursements of counsel for the preferred stock Underwriters relating to such registration or such substantially similar securities qualification and memoranda relating thereto); (vii) filing fees incident to securing any required review by the National Association of the CompanySecurities Dealers, except for Inc. ("NASD") in connection with the offering of the SecuritiesShares; (viii) furnishing such copies of the Registration Statement, the preliminary prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriters; (ix) fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel); (x) printing certificates representing the Shares; (xi) the costs and charges of any transfer agent, registrar and/or depositary; and (xii) all other reasonable costs and expenses incident to the performance by the Company and the Selling Stockholders of their other obligations under this Agreement (other than each parties' respective share of the costs and expenses incurred in connection with the roadshow; provided that the Company and the Underwriters shall split equally the costs of private air travel).
(j) The Company will comply with If the Registration Statement at the time of the effectiveness of this Agreement does not cover all applicable securities and other laws, rules and regulations, including, without limitation, of the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as suchShares, to comply file a Rule 462(b) Registration Statement with the Commission registering the Shares 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 laws, rules and regulations, including, without limitation, Rule 462(b) Registration Statement at the provisions time of the Sarbanes Oxley Act filing thereof or to give irrevocable instructions for the payment of 2002.
(ksuch fee pursuant to Rule 111(b) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterAct.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatUnderwriters:
(a) Prior To transmit the Prospectus to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within by a means reasonably calculated to result in the time period prescribed and will provide evidence satisfactory to the Representative timely filing of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed Prospectus with the Commission pursuant to Rule 424(b).
(b) To advise the Representative promptly and, if requested by the Representative, to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment to it becomes effective, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of amendments to the Registration Statement, Statement or for any supplement amendments or supplements to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of any notice objecting to its use of the Securities for offering or sale in any jurisdiction, or the institution or threatening initiation of any proceeding for that purpose either such purpose, and (viv) of the receipt by the Company happening of any notification with respect event during the period referred to in paragraph (e) below which, in the suspension judgment of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement andCompany, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to makes the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in not misleading. If at any time the light Commission shall issue any stop order suspending the effectiveness of the circumstances under which they were made at such time not misleadingRegistration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(ic) notify promptly To furnish to the Representative so that any use two signed copies of the Disclosure Package may cease until it is amended or supplementedRegistration Statement as first filed with the Commission and of each amendment to it, (ii) amend or supplement the Disclosure Package to correct such statement or omissionincluding all exhibits, and (iii) supply any to furnish to the Underwriters such number of conformed copies of the Registration Statement as so filed and of each amendment or supplement to you in such quantities it, without exhibits, as you the Underwriters may reasonably request.
(d) If, at Not to file any time when a prospectus relating amendment or supplement to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement whether before or after the time when it becomes effective, or to make any amendment or supplement to the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly which the Representative of such event, (ii) shall not previously have been advised or to which the Representative shall reasonably object and to prepare and file with the CommissionCommission promptly upon the request of the Representative, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable supplement to the Prospectus which may be necessary or advisable in order to avoid connection with the distribution of any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for Securities by the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, same to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002become promptly effective.
(ke) The Company will not takePromptly after the Registration Statement becomes effective, directly and from time to time thereafter for such period as in the opinion of counsel to the Underwriters a prospectus is required by law to be delivered in connection with sales by the Underwriters or indirectlysuch dealers as the Representative shall specify, any action designed to or that would constitute or that might reasonably be expected furnish to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation Underwriters and each such dealer as many copies of the price Prospectus (and of each amendment or supplement to the Prospectus) as the Underwriters or such dealer may reasonably request.
(f) If during the period specified in Section 5(e) hereof any security event shall occur as a result of which, in the opinion of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as counsel to the activities of any Underwriter.Underwriters it
Appears in 1 contract
Samples: Underwriting Agreement (WFS Financial Auto Loans Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative Representatives a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representatives reasonably object. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B under the 1933 Act and will notify the Representatives immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post- effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 424, in the manner and within the time period required by Rule 424, notify the Representatives of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representatives reasonably object, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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 furnish to the Representatives, without charge, such number of copies of such amendment, supplement or supplement to you in such quantities new registration statement as you the Representatives may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay cooperate with the expenses of printing or other production of all documents relating Representatives in endeavoring to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative Representatives may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representatives may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representatives may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now so subject.be audited), which will satisfy the requirements of
(i) The No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 30 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may beCompany, otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesRepresentatives.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(l) The Company will maintain a trustee, paying agent and registrar for the Notes.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law. (n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act and the Exchange Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities of any UnderwriterUnderwriters with reports it is required to file with the Commission under the Exchange Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or any Rule 462(b) post-effective amendment to the Final Prospectus Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment or supplement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any shares of Preferred Stock or other securities convertible into or exchangeable or exercisable for shares of Preferred Stock or derivative of Preferred Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, directly or indirectly, by the Company agrees thatotherwise than hereunder or with the prior written consent of the Representative. Notwithstanding the foregoing, unless if (i) during the last 17 days of the 60-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 60-day restricted period, the Company announces that it has obtained will release earnings results during the 16-day period following the last day of the 60-day restricted period, then in each case the restrictions imposed by this Agreement will continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or will obtainthe occurrence of material news or a material event relating to the Company, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securitieswaives, in each case that are substantially similar to the Preferred Stockwriting, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesextension.
(j) The Company will comply with all applicable securities has caused certain of its executive officers and other lawseach director of the Company to furnish to the Representative, rules and regulationson or prior to the date of this Agreement, includinga letter or letters, without limitationsubstantially in the form attached hereto as Exhibit C (the “Lockup Agreement”). During the Lock-Up Period (as defined in the Lockup Agreement), the Sarbanes Oxley Act Company will enforce all agreements between the Company and any of 2002its security holders that restricts or prohibits, and use its best efforts to cause the Company’s directors and officers, expressly or in their capacities as such, to comply with such laws, rules and regulations, including, without limitationoperation, the provisions offer, sale or transfer of the Sarbanes Oxley Act securities subject thereto or any of 2002the other actions restricted or prohibited under the terms thereof.
(k) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Preferred Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company and the Underwriters will obtain a no agreement as to objection letter from FINRA regarding the activities fairness and reasonableness of any Underwriterthe underwriting terms and arrangements.
Appears in 1 contract
Samples: Underwriting Agreement (Gladstone Investment Corporation\de)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement theretoin a form approved by the Representatives, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within under the time period prescribed Act and will provide evidence satisfactory to notify the Representative Representatives promptly of such timely filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Bonds and of the offering, in the form attached as Schedule III hereto, will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Representatives with copies thereof, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and Issuer Free Writing Prospectus, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Bonds for offering or sale in any jurisdiction or jurisdiction, (vi) of the institution initiation or threatening of any proceeding or examination for any such purpose. The Company will use its best efforts to prevent the issuance , and (vii) of any such stop order request by the Commission for the amending or the occurrence of any such suspension or objection to the use supplementing of the Registration Statement andStatement, upon such issuanceany Preliminary Prospectus, occurrence the Prospectus or notice of objectionany Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an Company will not file (i) any amendment to the Registration Statement or supplement to the Prospectus (excluding documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Representatives a new registration statement copy for your review prior to filing and using will not file any such proposed amendment or supplement to which the Representatives reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will consult with the Representatives as to any comments which the Representatives make in a timely manner with respect to such document. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds. Following the Closing Date and, for long as a prospectus relating to the Bonds is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to have obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Bonds by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Representatives may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representatives and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Representatives may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions within in the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesBonds; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeRepresentatives, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesRepresentatives.
(j) The In connection with the offering of the Bonds, until the Representatives shall have notified the Company and the other Underwriters of the completion of the sale of the Bonds, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Bonds.
(k) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterBonds.
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of Colorado)
Agreements of the Company. The Company agrees with the several Underwriters and the Selling Stockholder that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to Rule 424 not later than 10:00 a.m., New York City time, on the applicable paragraph business day following the date of Rule 424(b) within the time period prescribed this Agreement and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative Representatives and the Selling Stockholder (iA) when the Final Prospectus, and any supplement thereto, Prospectus shall have been filed with the Commission pursuant to Rule 424(b)424, (iiB) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Stock shall have been filed or become effective, (iiiC) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus, the Basic Prospectus or any Interim Prospectus, or for any additional information, (ivD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose and (vE) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Stock for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The After the date of this Agreement and prior to the termination of the offering of the Stock, the Company will not file any amendment of the Registration Statement or amendment or supplement to the Final Prospectus (except an amendment or supplement to the Final Prospectus that is deemed to be incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3) without the consent of the Selling Stockholder and the Representatives and will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof. Prior to receipt of such stop order or relief from such occurrence or objectionthe advice to be given by the Selling Stockholder and the Representatives pursuant to Section 5, including, if necessary, the Company will not file any document that would be deemed to be incorporated by filing an amendment reference in the Final Prospectus pursuant to Item 12 of Form S-3 without delivering to the Registration Statement or Selling Stockholder and the Representatives a new registration statement copy of the document proposed to be so filed, such delivery to be made at least twenty-four hours prior to such filing, and using its best efforts the Company will consult with the Selling Stockholder and the Representatives as to have such amendment or new registration statement declared effective as soon as practicableany comments which the Selling Stockholder and the Representatives make in a timely manner with respect to the document so delivered.
(b) The Company will prepare a final term sheet, containing solely a description of final terms Subject to the last sentence of the Securities and the offering thereofimmediately preceding paragraph, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) Ifif, at any time when a prospectus relating to the Securities Stock is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, any event occurs as a result of which the Final Prospectus as then amended or 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 made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusRules, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, Commission an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, (iii) compliance and will use its best efforts to have cause any amendment to of the Registration Statement or new registration statement declared containing an amended Final Prospectus to be made effective as soon as practicable in order possible.
(c) The Company will deliver to avoid the Representatives and the Selling Stockholder, without charge, (i) signed copies of the Registration Statement relating to the Stock and of any disruption in use amendments thereto (including all exhibits filed with, or incorporated by reference in, any such document) and (ii) as many conformed copies of the Registration Statement and of any amendments thereto which shall become effective on or before the First Delivery Date (excluding exhibits) as the Representatives or the Selling Stockholder may reasonably request.
(d) During such period as a prospectus is required by law to be delivered by an Underwriter or dealer, the Company will deliver, without charge to the Representatives and to Underwriters and dealers, at such office or offices as the Representatives may designate, as many copies of the Basic Prospectus, any Interim Prospectus and the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative Representatives may reasonably request.
(e) As soon as practicable, the The Company will make generally available to its security holders and to the Representative a consolidated Representatives as soon as practicable an earnings statement or statements (which need not be audited) of the Company and its subsidiaries, covering a period of at least 12 months beginning after the date the Final Prospectus is filed with the Commission pursuant to Rule 424, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Securities Act.
(f) Upon request, the The Company will furnish to the Representative such information, execute such instruments and counsel for the Underwriters, without charge, signed 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 take such actions as delivery of a prospectus by an Underwriter or dealer may be required by to qualify the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus Stock for offering and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Selling Stockholder and the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesStock; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, So long as the case may beany Stock is outstanding, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained will furnish or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating cause to be furnished to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be Representatives copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, respectively, or retained such other similar forms as may be designated by the Commission.
(h) If the Company under Rule 433, other than has applied for the Final Term Sheet described above or other free writing prospectuses containing solely a description listing of the final terms of Stock on the Securities and New York Stock Exchange Inc. (the offering thereof. Any "NYSE"), it will use its best efforts to cause such free writing prospectus consented listing to by the Representative or the Company is hereinafter referred to be approved as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, soon as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpossible.
(i) During the For a period beginning on of 30 days from the date hereof and continuing to and including of this Agreement, without the Closing Dateprior consent of the Representatives, the Company will not, without the prior written consent of Citigroup Global Markets Inc., not offer, sell, contract to sell, pledge, sell or otherwise dispose of (or enter into any transaction which is designed toshares of preferred stock, or might reasonably be expected tosell or grant options, result in the disposition (whether by actual disposition rights or effective economic disposition due warrants with respect to cash settlement or otherwise) any shares of preferred stock covered 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock Registration Statement or any other securities of registration statement filed under the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesSecurities Act.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause do and perform all things to be done and performed hereunder prior to each Delivery Date and to satisfy all conditions precedent to the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions delivery of the Sarbanes Oxley Act of 2002Stock to be purchased hereunder.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Lehman Brothers Holdings Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative reasonably may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.), in connection with its review of the offering; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any shares of preferred stock or any other securities of the Company, including any backup back-up undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stockpreferred stock, or any securities convertible into or exchangeable for the such preferred stock or such substantially similar securities of the Company, except for (i) the offering of the SecuritiesSecurities and (ii) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 497, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)497 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will comply with the requirements of such stop order or relief from such occurrence or objectionRule 430B and 430C under the 1933 Act and will notify the Representative immediately, includingand confirm the notice in writing, if necessary, by filing an of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and using (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings required under Rule 497, in the manner and within the time period required by Rule 497, notify the Representative of the filing thereof, and take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If at any time when the Prospectus is required by the 1933 Act or the Exchange Act to be delivered in connection with sales of the Securities, any event will occur or condition will exist as a result of which it is necessary, in the reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, to file a new registration statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating furnish to the Securities is required to be delivered under the Act (including in circumstances where Representative, without charge, such requirement may be satisfied pursuant to Rule 172), any event occurs as a result number 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative copies of such eventamendment, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gd) The Company will arrange, if necessary, for cooperate with the qualification of Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions within the United States as the Representative may reasonably designatehave designated in writing and will make such applications, will maintain file such qualifications in effect so long documents, and furnish such information as may be reasonably required for the distribution of the Securitiesthat purpose; provided that in no event shall the Company will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, a copy of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in any jurisdiction where the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any shares of Common Stock or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of the Prospectus, directly or indirectly, by the Company agrees thatotherwise than hereunder or with the prior written consent of the Representative. Notwithstanding the foregoing, unless if (i) during the last 17 days of the 60-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 60-day restricted period, the Company announces that it has obtained will release earnings results during the 16-day period following the last day of the 60-day restricted period, then in each case the restrictions imposed by this Agreement will continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or will obtainthe occurrence of material news or a material event relating to the Company, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securitieswaives, in each case that are substantially similar to the Preferred Stockwriting, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesextension.
(j) The Company will comply with all applicable securities has caused certain of its executive officers and other lawseach director of the Company to furnish to the Representative, rules and regulationson or prior to the date of this Agreement, includinga letter or letters, without limitationsubstantially in the form attached hereto as Exhibit C (the “Lockup Agreement”). During the Lock-Up Period (as defined in the Lockup Agreement), the Sarbanes Oxley Act Company will enforce all agreements between the Company and any of 2002its security holders that restrict or prohibit, and use its best efforts to cause the Company’s directors and officers, expressly or in their capacities as such, to comply with such laws, rules and regulations, including, without limitationoperation, the provisions offer, sale or transfer of the Sarbanes Oxley Act securities subject thereto or any of 2002the other actions restricted or prohibited under the terms thereof.
(k) The Company will apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company has obtained an initial no agreement as to objections letter and the activities Underwriters will obtain a final no objection letter from FINRA regarding the fairness and reasonableness of any Underwriterthe underwriting terms and arrangements.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior The Company will cause the Prospectus, in a form approved by the Representatives, to be filed pursuant to Rule 424(b) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the termination Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representatives (i) when any amendment to the Registration Statement has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and (iv) of the offering issuance by the Commission of any stop order or of any order preventing or suspending the use of the SecuritiesRegistration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (vi) of the initiation or threatening of any proceeding or examination for any such purpose, and (vii) of any request by the Commission for the amending or supplementing of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will not file (i) any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or (excluding documents deemed to be incorporated by reference into the Final Prospectus Prospectus) unless the Company has furnished to the Representative Representatives a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they the Representatives reasonably object. The object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will cause consult with the Final ProspectusRepresentatives as to any comments which the Representatives make in a timely manner with respect to such document. During the period for which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), properly completed, the Company will promptly file all reports and any supplement thereto, definitive proxy or information statements required to be filed in a form acceptable to by the Representative Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory Exchange Act subsequent to the Representative date of such timely filingthe Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares. The Following the Closing Date and, for so long as a prospectus relating to the Shares is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly advise use its best efforts to obtain the Representative (i) when withdrawal of such order. In the Final Prospectus, and event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any supplement post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Shares by the Underwriters (and references herein to the “Registration Statement” shall have been filed with include any such amendment or new registration statement).
(b) If required by Rule 430B(h) under the Commission Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b), ) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof.
(iic) when, prior to termination If by the third anniversary (the “Renewal Deadline”) of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment initial effective date of the Registration Statement, or for any supplement of the Shares remain unsold by the Underwriters, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Final Prospectus or for any additional informationShares, (iv) of in a form satisfactory to you. If at the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by Renewal Deadline the Company of any notification with respect is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the suspension of Shares, in a form satisfactory to you and will use its best efforts to cause such registration statement to be declared effective within 180 days after the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeRenewal Deadline. The Company will use its best efforts to prevent take all other action necessary or appropriate to permit the issuance public offering and sale of any such stop order or the occurrence of any such suspension or objection Shares to continue as contemplated in the expired registration statement relating to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment Shares. References herein to the Registration Statement or a shall include such new automatic shelf registration statement and using its best efforts to have or such amendment or new shelf registration statement declared effective statement, as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package case 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 requestbe.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the The Company will make generally available to its security holders and to the Representative Representatives a consolidated earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(f) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Representatives conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), all amendments of and supplements to such documents, in each case as many copies of any Preliminary Prospectus, the Final Prospectus soon as available and any Issuer Free Writing Prospectus and any supplement thereto in such quantities as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) Without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(h) The Company will arrangepromptly file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act and will retain as and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if necessaryfor any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, for the qualification Company will notify the Representatives and, upon their request, file such document and prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(i) The Company will furnish such information, execute such instruments and take such action as may be required to qualify the Securities Shares for sale under the laws of such jurisdictions within in the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesShares; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ij) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent For a period of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including two years after the Closing Date, the Company will notfurnish (or cause to be furnished) to each of the Representatives, without upon request, copies of all reports and financial statements filed with the prior written consent Commission or any national securities exchange.
(k) During the 45-day period beginning on the date of Citigroup Global Markets Inc.this Agreement, the Company will not offer, sell, contract to sell, pledge, pledge 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)of, directly or indirectly, including or file with the filing (or participation in the filing) of Commission a registration statement with under the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActSecurities Act relating to, any preferred securities, any preferred stock shares of Common Stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for any shares of Common Stock, or publicly disclose the preferred stock intention to make any such offer, sale, pledge, disposition or such substantially similar securities filing, without the prior written consent of the CompanyRepresentatives, except for issuances pursuant to the exercise or conversion of stock options, restricted stock or restricted stock units, or performance shares or convertible notes outstanding on the date of this Agreement, grants of employee stock options, restricted stock or restricted stock units, or performance shares pursuant to the terms of a plan in effect on the date of this Agreement, issuances pursuant to the exercise or conversion of such stock options, restricted stock or restricted stock units, or performance shares, the filing of registration statements on Form S-8 and amendments thereto in connection with such stock options, restricted stock or restricted stock units, or performance shares or the Company’s employee stock purchase plans in existence on the date of this Agreement, issuances pursuant to direct stock purchase or dividend reinvestment plans in place on the date of this Agreement and the issuances pursuant to any direct stock purchase plan that replaces the Company’s current dividend reinvestment plan.
(l) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(m) In connection with the offering of the Securities.
(j) The Shares, until the Representatives shall have notified the Company and the other Underwriters of the completion of the sale of the Shares, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Shares or attempt to induce any person to purchase any Shares or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Shares.
(kn) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterShares.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement without the consent of the Representatives, which consent shall not be unreasonably withheld, unless the Company is required by law to which they reasonably objectmake such filing before consent can be given. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, subject to Section 5(b), any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement, of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose, (v) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act and (vvi) of the receipt by the Company 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 purposepurpose or pursuant to Section 8A of the Act. The Company will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a the form acceptable to approved by you (the “Final Term Sheet”) and to attached as Schedule IV hereto and file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 or the Final Prospectus, as then amended or 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package or the Final Prospectus may cease until it is amended or supplemented, ; (ii) amend or supplement the Disclosure Package or the Final Prospectus to correct such statement or omission, ; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request, provided, however, that before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such proposed amendment or supplement to which the Representatives reasonably object, except as otherwise may be required by law.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Disclosure Package or 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Disclosure Package or the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Disclosure Package or the Final Prospectus and (iv) supply any supplemented Disclosure Package or Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative Representatives for a consolidated period of twelve months following the Execution Time, an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(g) The Company will use its reasonable efforts to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, will designate and maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees thatBefore preparing, unless it has obtained using, authorizing, approving, referring to or will obtainfiling any Issuer Free Writing Prospectus, as and before filing any amendment or supplement to the case may beRegistration Statement or the Final Prospectus, the prior written consent Company will furnish to the Representatives and counsel for the Underwriters a copy of the Representativeproposed Issuer Free Writing Prospectus, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained amendment or will obtain, as the case may be, the prior written consent of the Company, it has not made supplement for review and will not make prepare, use, authorize, approve, refer to or file any offer relating to the Securities that would constitute an such Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required file any such proposed amendment or supplement to be filed by which the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingRepresentatives reasonably object.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Barclays Capital Inc., BofA Securities, Inc. and X.X. Xxxxxx Securities LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock debt securities issued or any guaranteed by the Company (other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of than the Securities) or publicly announce an intention to effect any such transaction, until and including the Closing Date.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, except that printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses reasonably incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company makes no agreement as to the activities of any Underwriterits obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Lear Corp)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d424(b) within the time period required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon If there occurs an event or development as practicablea result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will make generally available to its security holders and to promptly notify the Representative a consolidated earnings so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyomission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances the prevailing, not misleading, the Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will arrangeuse its commercially reasonable efforts, if necessaryin cooperation with the Underwriters, for the qualification of to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions within the United States (domestic or foreign) as the Representative Underwriters may reasonably designate, will designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided provided, however, that in no event the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now otherwise so subject.
(i) The Company agrees thatwill timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable, unless it has obtained or will obtainbut in any event not later than 16 months after the date hereof, as an earnings statement for the case may bepurposes of, and to provide the benefits contemplated by, the prior written consent last paragraph of Section 11(a) of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping1933 Act.
(ij) During the period beginning on from the date hereof and continuing to and including the Closing Datedate that is 90 days after the date of the Prospectus, the Company will notnot sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities or any securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or file or cause to be declared effective a registration statement under the 1933 Act with respect to any of the foregoing, without the prior written consent of Citigroup Global Markets Inc.the Representative, offerwhich may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, sell(ii) borrowings under the Credit Facility, contract to sell, pledge, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in iv) the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) filing by the Company or any affiliate of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company or any person in privity will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company or any affiliate of the Company)will maintain a trustee, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable paying agent and registrar for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(o) Each of the Company makes no agreement as and SBIC Fund I, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the activities 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, neither the Company nor SBIC Fund I will be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to cause each of the SBIC Funds to continue to comply with the requirements for qualification as an SBIC and to meet its obligations as an SBIC licensed by the SBA.
(s) The Company and its Subsidiaries shall comply in all material respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act and the Commission’s published rules promulgated thereunder that are applicable to the Company and its Subsidiaries, as applicable.
(t) The Fidus Entities shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Registration Statement, the Prospectus and General Disclosure Package, and each of the Fidus Entities shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Company Material Adverse Effect.
(u) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus filings necessary pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon as practicable, the The Company will make generally available to its security holders and to cooperate with the Representative a consolidated earnings statement in endeavoring to qualify the Securities for offering and sale under the applicable securities laws of such jurisdictions (domestic or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(aforeign) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided the Company will pay the expenses of printing or other production of all documents relating to the offering that are not be required to be prepared, furnished qualify as a foreign corporation or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification to file a general consent to service of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(g) The Company will make generally available to its security holders, in any jurisdiction where as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(h) No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company or other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representative.
(i) The Company agrees that, unless will use the net proceeds received by it has obtained or will obtain, as from the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms sale of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation manner specified in the filing) General Disclosure Package and in the Prospectus under “Use of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesProceeds.”
(j) The Company will comply cooperate with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, Representative and use its best commercially reasonable efforts to cause permit the Company’s directors offered Securities to be eligible for clearance and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, settlement through the provisions facilities of the Sarbanes Oxley Act of 2002DTC.
(k) The Company will maintain a trustee, paying agent and registrar for the Securities.
(l) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(n) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(o) During the 12-month period following the Closing Date, the Company will use its commercially reasonable efforts to qualify and elect to be treated as a regulated investment company under Subchapter M of the Code and to maintain such qualification and election in effect for each full fiscal year during which it is a business development company under the 1940 Act.
(p) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the activities Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of to the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a the form acceptable approved by the Representatives and referred to you (the “Final Term Sheet”) in Schedule IV hereto and to will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 55(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As Upon the request by the Underwriters, as soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158; provided, however, that this covenant will be deemed satisfied as long as the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act and has filed its report or reports on Form 10-K, Form 10-Q or Form 8-K, or has supplied to the Commission copies of the annual report sent to security holders pursuant to Rule 14a-3(c) of the Exchange Act, containing such earning statement or statements.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by of the CompanySecurities.
(g) The Company will arrange, if necessary, shall cooperate with the Representatives and counsel for the qualification of Underwriters to qualify or register the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such jurisdictions within the United States as the Representative may reasonably designate, will laws and shall maintain such qualifications qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities; provided that in no event . The Company shall the Company not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified transact business, or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securitiesprocess, in any such jurisdiction where it is not now so subjectpresently qualified or where it would be subject to taxation as a foreign business.
(i) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, as the case may be, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other a free writing prospectuses prospectus containing solely a description the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided, however, that the prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities and the offering thereofFree Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock debt securities issued or any guaranteed by the Company (other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company will pay all costs, except that fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation, (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, any Preliminary Prospectus and the Final Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture and the Securities, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company makes no agreement as or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, and advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incurred and the reasonable fees and disbursements of counsel to the activities Underwriters in connection with any filing with, and the review and clearance of the terms of the sale of the Securities by, the Financial Industry Regulatory Authority, Inc. (FINRA), (vii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (viii) any Underwriterfees payable in connection with the rating of the Securities with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for “book-entry” transfer, and (x) all other fees, costs and expenses incurred by the Company in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section 5(k). Except as provided in this Section 5(k) and in Section 8 and Section 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
Appears in 1 contract
Samples: Underwriting Agreement (SNAP-ON Inc)
Agreements of the Company. The Company agrees with the several Underwriters each of you that:
(a) Prior to the termination of the offering of the SecuritiesIt will advise DLJ promptly and, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any if requested by DLJ, confirm such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectusadvice in writing, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 4(f), 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 4(e), which makes any statement of a material fact made in the Preliminary Offering Memorandum or the Offering Memorandum untrue or which requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company will shall use its best efforts to prevent the issuance of any such stop order or order suspending the occurrence qualification or exemption of the Securities under any Federal or 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 the Securities under any state securities or Blue Sky laws, the Company shall use every reasonable effort to obtain the withdrawal or lifting of such suspension order at the earliest possible time.
(b) It will 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, including all documents incorporated by reference therein, and any amendments or objection supplements thereto, as the Initial Purchasers may reasonably request for the time period referred to in Section 4(e). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 6 hereof, the Company consents to the use of the Registration Statement andPreliminary Offering Memorandum and the Offering Memorandum, upon such issuanceincluding all documents incorporated by reference therein, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessaryand any amendments and supplements thereto required pursuant hereto, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, Initial Purchasers in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Ruleconnection with Exempt Resales.
(c) If, at any time prior during the period referred to the filing of the Final Prospectus pursuant to Rule 424(bin Section 4(e), any event occurs shall occur as a result of which it becomes necessary to amend or supplement the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary Offering Memorandum in order to make the statements therein therein, in the light of the circumstances under which they were made at when such time Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if it is necessary to amend or supplement the Company Offering Memorandum to comply with any law, it will (i) notify promptly prepare an appropriate amendment or supplement to the Representative Offering Memorandum so that any use of the Disclosure Package may cease until it is statements in the Offering Memorandum, as so amended or supplemented, (ii) amend or supplement will not, in the Disclosure Package to correct such statement or omissionlight of the circumstances existing as of the date the Offering Memorandum is so delivered, be misleading, and (iii) supply any will comply with applicable law, and will promptly notify you of such event and amendment or supplement and furnish to you in without charge such quantities number of copies thereof as you may reasonably request.
(d) IfWhether or not the transactions contemplated hereby are consummated or this Agreement is terminated, at any time when a prospectus relating to the Securities is required to it will pay and be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)responsible for all reasonable costs, 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 not misleadingcharges, or if it shall be necessary to amend the Registration Statementexpenses, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including fees and taxes incurred in connection with use or incident to (i) the preparation, printing, filing, distribution and delivery of the Final ProspectusOffering Memorandum, the Company will (i) notify promptly the Representative of such eventPreliminary Offering Memorandum and all amendments and supplements thereto, (ii) prepare the issuance and file with delivery of the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such complianceSecurities, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable printing and delivery of this Agreement, the Indentures and all other agreements, memoranda, reports, correspondence and other documents printed, distributed and delivered in order to avoid any disruption in use connection with the offering of the Final Prospectus and Securities, (iv) supply the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph (f) below (including, in each case, the reasonable fees and disbursements of counsel relating to such registration or qualification and memoranda relating thereto and any supplemented Final Prospectus filing fees in connection therewith), (v) furnishing such copies of the Offering Memorandum, the Preliminary Offering Memorandum, and all amendments and supplements to any of them, including any document incorporated by reference therein, as may be reasonably requested by the Initial Purchasers or by dealers to whom Securities may be sold, (vi) any filing with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the offering of the Securities (including, without limitation, any filing fees in connection therewith but excluding the fees of Xxxxxxxx & Xxxxxxxx, legal counsel to the Representative Underwriters ("Initial Purchasers' Counsel")), (vii) the application for quotation of the Securities in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (viii) the rating of the Securities by investment rating agencies, (ix) any "qualified independent underwriter" as required by Rule 2720 of the NASD (including fees and disbursements of counsel for such quantities as qualified independent underwriter) and (x) the Representative may reasonably requestperformance by the Company of its other obligations under this Agreement, including (without limitation) the fees of the Trustees, the cost of their respective personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses incident to the sale and delivery of the Securities to the Initial Purchasers.
(e) As soon During such period as practicablein the reasonable judgment of the Initial Purchasers an Offering Memorandum is required (or would be required if the sales were registered under the Securities Act) to be delivered in connection with Exempt Resales by the Initial Purchasers, it will not make any amendment or supplement to the Offering Memorandum (other than any document required to be filed under the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder (collectively, the "Exchange Act") that upon filing is deemed to be incorporated by reference therein) of which the Initial Purchasers shall not previously have been advised and provided a copy prior to the filing thereof or to which the Initial Purchasers shall reasonably object unless in the opinion of legal counsel to the Company such amendment or supplement is required by law to be filed; it will make generally available furnish to its security holders you at or prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Offering Memorandum; and it will 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 and to the Representative a consolidated earnings statement or statements of which the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158shall not reasonably object.
(f) Upon request, the Company will furnish Prior to the Representative sale of all Securities pursuant to Exempt Resales as contemplated hereby, it will cooperate with the Initial Purchasers and counsel for to the Underwriters, without charge, signed copies Initial Purchasers in connection with the registration or qualification of the Registration Statement (including exhibits thereto) Securities for offer and sale 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 (including in circumstances where such requirement may be satisfied Initial Purchasers and pursuant to Rule 172), as many copies Exempt Resales under the securities or Blue Sky laws of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto such United States jurisdictions as the Representative Initial Purchasers may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the continue such qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required by law for the distribution Exempt Resales and will file such consents to service of the Securities; provided process or other documents as may be necessary in order to effect such registration or qualification (PROVIDED, that in no event shall the Company shall not be obligated to qualify to do business as a foreign corporation in any jurisdiction where in which it is not now so qualified or nor to take any action that would subject it to general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where in which it is not now so subject).
(ig) The So long as any of the Securities remain outstanding and during any period in which the Company agrees thatis not subject to Section 13 or 15(d) of the Exchange Act, unless it has obtained or will obtain, as the case may bemake available to any holder of Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the prior written consent of information ("Rule 144A Information") required by Rule 144A(d)(4) under the Representative, Act.
(h) It will file timely all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained any definitive proxy or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) information statement required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description 15(d) of the final terms Exchange Act and it will use its best efforts to effect the inclusion of the Securities in PORTAL and to maintain the offering thereof. Any such free writing prospectus consented to by listing of the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, Securities on PORTAL for so long as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingSecurities are outstanding.
(i) To the extent permitted by law, it will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities.
(j) It will use the proceeds from the sale of the Securities in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(k) During the period beginning on the date hereof of this Agreement and continuing to and including the Closing Date, the Company it will not, without the prior written consent of Citigroup Global Markets Inc., not offer, sell, contract to sell, pledge, 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 debt securities of the Company or any person in privity with the Company or any affiliate of the Company)warrants, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect ofrights, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other options to purchase debt securities of the Company, including any backup undertaking of such preferred stock or Company (other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of than (i) the Securities, (ii) up to an additional $10 million principal amount of 8__% Senior Subordinated Notes due 2008 and (iii) commercial paper issued in the ordinary course of business), without your prior written consent.
(jl) The Company It will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors do and officers, in their capacities as such, perform all things required to comply with such laws, rules be done and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed performed under this Agreement by it prior to or that would constitute or that might reasonably after the Closing Date and will use its reasonable best efforts to satisfy all conditions precedent on its part to be expected satisfied prior to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale delivery of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and and
(iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative reasonably may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.), in connection with its review of the offering; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the For a period beginning on of 60 days from the date hereof and continuing to and including of the Closing DateFinal Prospectus, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any shares of Common Stock or preferred stock or any other securities capital stock of the Company, including any backup undertaking other shares of such convertible preferred stock or other securities, in each case that are substantially similar to the Preferred Stockany capital stock convertible into, or any securities convertible into exercisable or exchangeable for the preferred stock or such substantially similar securities for, shares of the CompanyCommon Stock, except for (i) the offering of the Securities, (ii) the additional convertible preferred stock of the Company being sold in private placements concurrently with the offering of the Securities and the non-convertible preferred stock of the Company being sold in a U.S. public offering concurrently with the offering of the Securities, in each case as described in the Disclosure Package and the Final Prospectus, (iii) the issuance of Common Stock pursuant to the definitive share exchange agreement between Citigroup Japan Holdings and Nikko Cordial Corporation, as described in the Company’s Form 8-K filed with the SEC on October 31, 2007, (iv) any shares of Common Stock issuable upon conversion of convertible preferred stock and (v) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
(l) The Company will reserve and keep available at all times, free of preemptive rights, the full number of shares of Common Stock issuable upon conversion of the Convertible Preferred Stock.
(m) The Company shall use its reasonable efforts to furnish to the Representative a letter addressed to the Representative substantially in the form of Exhibit A hereto from each of the persons listed in Exhibit B hereto.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatPurchaser as follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly To advise the Representative (i) when the Final ProspectusPurchaser, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) promptly after it receives notice of the issuance by the Commission Commission, any state securities commission or any other regulatory authority of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company Disclosure Documents, or of any notification with respect to the suspension of the qualification of the Securities Shares or Common Stock for offering or sale in any jurisdiction or jurisdiction, of the institution initiation or threatening of any proceeding for any such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheetTo advise you promptly and, containing solely a description of final terms if requested by you, to confirm such advice in writing, of the Securities and happening of any event that makes any statement of a material fact made in the offering thereofDisclosure Documents untrue or that requires the making of any additions to or changes in the Disclosure Documents in order to make the statement therein not misleading, unless such event was promptly reported by the Company in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rulepublicly filed document.
(c) If, at any time prior The Company will use commercially reasonable efforts to apply the filing net proceeds from the sale of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which Shares in accordance with the description set forth in the Disclosure Package would include any untrue statement Documents under the caption "Use 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, the Company will (i) notify promptly the Representative 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 requestProceeds."
(d) If, at any time when a prospectus relating The Company will use commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Securities is required Closing Date and to be delivered under satisfy all conditions precedent to the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestShares.
(e) As soon For so long as practicableany of the Shares or the Common Stock remain outstanding and during any period in which the Company is not subject to Section 13 or 15 (d) of the Securities Exchange Act of 1934, as amended (the" Exchange Act"), the Company will agrees to make generally available to its security holders the Purchaser and to the Representative a consolidated earnings statement any prospective or statements subsequent beneficial owner of the Company and its subsidiariesShares or Common Stock in connection with any sale thereof, which will satisfy the provisions of Section 11(ainformation required by Rule 144A(d)(4) of under the Act and Rule 158or any other applicable resale provision under the Act.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company has agrees that, unless it has obtained or will obtain, as for three (3) years after the case may beClosing Date of this Agreement, the prior written consent Purchaser will have the right to designate one individual to be elected to the Company's Board of Directors. Such individual may be a director, officer, employee or affiliate of thePurchaser. In the event the Purchaser elects not to designate a person to serve on the Company's Board of Directors, the Purchaser may designate an observer to attend meetings of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent Board of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing ProspectusDirectors.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Accredited Investor Purchase Agreement (Imsco Inc /Ma/)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and upon request will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the The Company will furnish to the Representative Representatives and 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by by` the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and the offering thereofany electronic road show. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc.the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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)of, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock other shares of Common Stock or any other securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may (i) issue and sell the Securities being offered pursuant to this Agreement, (ii) issue and sell Common Stock pursuant to any employee or director equity compensation or incentive plan, stock ownership or purchase plan or dividend reinvestment plan of the CompanyCompany in effect at the Execution Time, (iii) issue Common Stock issuable upon the conversion of securities (including any backup undertaking the issuance of such preferred Class A Common Stock upon the conversion of Class B Common Stock), the exercise of warrants or options or the vesting of restricted stock or other securitiesoutstanding at the Execution Time, in each case that are substantially similar to the Preferred and (iv) issue Common Stock, or any securities convertible into into, or exercisable, or exchangeable for for, shares of Common Stock, in connection with one or more acquisitions; provided that, in the preferred stock or case of this clause (iv), (x) each recipient of Common Stock shall have, prior to any such substantially similar securities issuance, entered into a written lock-up agreement that is identical in all material respects with Exhibit A-1 with respect to the then-remaining portion of the Company, except for the offering lock-up period and (y) any such issuance does not exceed 10% of the SecuritiesCommon Stock outstanding at the Execution Time.
(ji) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002has not taken, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that, except that as provided in this Section 5(k), and Sections 8 and 9 hereof, the Company makes no agreement as to Underwriters will pay all of their own costs and expenses, including the activities fees and disbursements of their counsel, and any Underwriteradvertising expenses connected with any offers they may make.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of to the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a the form acceptable approved by the Representatives and referred to you (the “Final Term Sheet”) in Schedule IV hereto and to will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative Representatives 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 55(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As Upon the request by the Underwriters, as soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158; provided, however, that this covenant will be deemed satisfied as long as the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act and has filed its report or reports on Form 10-K, Form 10-Q or Form 8-K, or has supplied to the Commission copies of the annual report sent to security holders pursuant to Rule 14a-3(c) of the Exchange Act, containing such earning statement or statements.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by of the CompanySecurities.
(g) The Company will arrange, if necessary, shall cooperate with the Representatives and counsel for the qualification of Underwriters to qualify or register the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such jurisdictions within the United States as the Representative may reasonably designate, will laws and shall maintain such qualifications qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities; provided that in no event . The Company shall the Company not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified transact business, or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securitiesprocess, in any such jurisdiction where it is not now so subjectpresently qualified or where it would be subject to taxation as a foreign business.
(i) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, as the case may be, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by containing the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result information contained in the disposition (whether by actual disposition or effective economic disposition due final term sheet prepared and filed pursuant 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.Section
Appears in 1 contract
Samples: Underwriting Agreement (Snap-on Inc)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative reasonably may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.), in connection with its review of the offering; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description press release issued December 14, 2009 announcing the offering of the Securities (the “December 14 Press Release”), the investor presentation dated December 14, 2009 announcing the offering of the Securities (the “Investor Presentation”), the press release issued December 16, 2009 announcing the final terms of the Securities (the “December 16 Press Release” and, together with the December 14 Press Release, the “Press Releases”) and the offering thereofFinal Term Sheet (as defined below). Any The Press Releases, the Investor Presentation, the Final Term Sheet and any such free writing prospectus consented to by the Representative or the Company is are each hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) During the For a period beginning on of 60 days from the date hereof and continuing to and including of the Closing DateFinal Prospectus, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities shares of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Common Stock or any securities convertible into into, exercisable for, or exchangeable for the preferred stock shares of Common Stock, or publicly announce and intention to effect any such substantially similar securities of the Companytransactions, except for (i) the offering of the SecuritiesSecurities and Issuable Common Stock, (ii) the concurrent offering of Common Stock by the Company scheduled to close on the Closing Date, (iii)issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company and (iv) the issuance of Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding on the date hereof.
(ji) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
(k) The Company will reserve and keep available at all times, free of preemptive rights, the maximum number of shares of Issuable Common Stock issuable under the Purchase Contract Agreement.
(l) The Company shall use its best efforts to furnish to the Representative a letter addressed to the Representative substantially in the form of Exhibit A hereto from each of the persons listed in Exhibit B hereto.
(m) The Company will prepare a final term sheet, containing a description of final terms of the Securities and the offering thereof (the “Final Term Sheet”), in a form approved by the Representative and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
Appears in 1 contract
Agreements of the Company. (a) The Company agrees to provide the Advisor and its authorized representatives with the several Underwriters that:
(a) Prior full access at all reasonable times and upon reasonable prior notice to the termination of Company's books and accounts, records, personnel, facilities, properties and assets so as to enable the offering of Advisor to gain the Securities, knowledge regarding the Company will not file any amendment necessary for the performance of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicableServices.
(b) The Upon the reasonable request of the Advisor, the Company will prepare provide it with all such information, data, compilations, summaries, descriptions and other materials that the Advisor deems reasonable and appropriate in connection with the performance of Services, including without limitation the development, preparation and marketing of a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such RuleTransaction.
(c) If, at any time The Company agrees to provide the Advisor with reasonable 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 at such time not misleading, the Company will (i) notify promptly the Representative 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 omissionnotice of, and (iii) supply any amendment or supplement the right to you in such quantities as you may reasonably requestattend and observe, all meetings of its shareholders and board of directors.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees thatto indemnify and hold harmless the Advisor, unless it has obtained or will obtainits directors, as managers, officers, employees and agents and each person, if any, who controls the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position Advisor within the meaning of Section 16 15 of the Exchange Securities Act of 1933, as amended (the "Securities Act"), any preferred securities, any preferred stock or any other securities Section 20 of the CompanySecurities Exchange Act of 1934, including as amended, against any backup undertaking of such preferred stock and all losses, claims, damages or other securitiesliabilities, in each case that are substantially similar joint or several, to which the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock Advisor or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, controlling person may become subject under the Exchange Securities Act or otherwise, stabilization insofar as such losses, claims, damages or manipulation liabilities (or actions in respect thereof) arise out of the price of or are based upon (i) any security of untrue statement or alleged untrue statement made by the Company to facilitate the sale Advisor or resale to any other person in connection with the provision of Services, a Transaction or otherwise; (ii) any untrue statement or alleged untrue statement of any material fact contained in any offering document or supplement or amendment thereto made or prepared in connection with a Transaction (any such offering document, supplement or amendment being a "Disclosure Document"); or (iii) the Securitiesomission or alleged omission to state in any Disclosure Document a material fact required to be stated therein or necessary to make the statement therein not misleading, except that and the Company makes no agreement will reimburse, as to the activities of incurred, each such indemnified party for any Underwriterlegal or other costs or expenses reasonably incurred by it in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d424(b) within the time period required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon If there occurs an event or development as practicablea result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will make generally available to its security holders and to promptly notify the Representative a consolidated earnings so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyomission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances the prevailing, not misleading, the Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will arrangeuse its commercially reasonable efforts, if necessaryin cooperation with the Underwriters, for the qualification of to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions within the United States (domestic or foreign) as the Representative Underwriters may reasonably designate, will designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided provided, however, that in no event the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now otherwise so subject.
(i) The Company agrees thatwill timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable, unless it has obtained or will obtainbut in any event not later than 16 months after the date hereof, as an earnings statement for the case may bepurposes of, and to provide the benefits contemplated by, the prior written consent last paragraph of Section 11(a) of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping1933 Act.
(ij) During the period beginning on from the date hereof and continuing to and including the Closing Datedate that is 90 days after the date of the Prospectus, the Company will notnot sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of, or agree to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities or any securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or file or cause to be declared effective a registration statement under the 1933 Act with respect to any of the foregoing, without the prior written consent of Citigroup Global Markets Inc.the Representative, offerwhich may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, sell(ii) borrowings under the Credit Facility, contract to sell, pledge, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in iv) the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) filing by the Company or any affiliate of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company or any person in privity will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company or any affiliate of the Company)will maintain a trustee, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable paying agent and registrar for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(o) Each of the Company makes no agreement as and Fund I, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the activities 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, neither the Company nor Fund I will be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to cause each of the SBIC Funds to continue to comply with the requirements for qualification as an SBIC and to meet its obligations as an SBIC licensed by the SBA.
(s) The Company and its Subsidiaries shall comply in all material respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act and the Commission’s published rules promulgated thereunder that are applicable to the Company and its Subsidiaries, as applicable.
(t) The Fidus Entities shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Registration Statement, the Prospectus and General Disclosure Package, and each of the Fidus Entities shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Company Material Adverse Effect.
(u) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the several Underwriters thatManagers:
(a) Prior To prepare a supplement to the termination of the offering of the Securities, the Company will not file any amendment Basic Prospectus forming part of the Registration Statement that is effective on the date hereof (File No. 333-208283), in a form approved by the Managers and covering the Shares, and to file such prospectus supplement pursuant to Rule 424(b) under the Act on the date hereof; to make no further amendment or any supplement to any Registration Statement, Basic Prospectus or Prospectus which shall be disapproved by the Managers promptly after reasonable notice thereof; to, subject to the foregoing, file any other supplement to the applicable Basic Prospectus required to be filed pursuant to Rule 424 under the Act within the time periods required by, and otherwise in compliance with, such rule; to advise the Managers promptly if any new, or any amendment to any existing, Registration Statement has been filed or becomes effective or any amendment or supplement to any Preliminary Basic Prospectus or Prospectus has been filed and to furnish the Final Prospectus unless the Company has furnished the Representative a copy for their review prior Managers with copies thereof; to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, promptly all material required to be filed in a form acceptable to by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b)433(d) under the Act; to advise the Managers, (ii) whenpromptly after it receives notice thereof, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any Basic Prospectus, Prospectus or other prospectus in respect of the Shares, of any notice of objection of the Commission to the use of any Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act (or of any other event causing the Company to cease to be eligible to use the Registration Statement or then covering the Shares, including by virtue of any notice objecting ceasing to its be eligible to use or the institution or threatening Form S-3), of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction or jurisdiction, of the institution initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of any Registration Statement, Basic Prospectus or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Basic Prospectus, Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and, in the event of any such issuance of a notice of objection or the occurrence of any such other event, promptly to take such steps (including, without limitation, amending the applicable Registration Statement or filing a new registration statement), at its own expense, as may be necessary to permit offers and sales of the Shares pursuant to this Agreement;
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Managers and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Managers promptly after reasonable notice thereof;
(c) If by the third anniversary (each, a “Renewal Deadline”) of the initial effective date of the applicable Registration Statement, any Shares remain available for sale pursuant hereto, the Company will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Managers. The If, at such Renewal Deadline, the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Managers, and will use its best efforts to prevent the issuance of any cause such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement be declared effective as soon as practicable.
(b) within 180 days after the Renewal Deadline. The Company will prepare a final term sheet, containing solely a description of final terms take all other action necessary or appropriate to permit the offering and sale of the Securities Shares to continue as contemplated in the expired registration statement relating to the Shares;
(d) Promptly from time to time to take such action as any Manager may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as such Manager 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 complete the offer and sale of the Shares as contemplated hereby, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(e) To furnish from time to time the Managers with written and electronic copies of the applicable Prospectus in New York City in such quantities as the Managers may reasonably request, and, if, during any period when the delivery of a prospectus (whether physically or through compliance with Rule 153, Rule 172 or any similar rule) would be required in connection with the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at or sale of any time prior to the filing of the Final Prospectus pursuant to Rule 424(b)Shares, any event occurs shall have occurred as a result of which the applicable Prospectus or Disclosure Package would include any as then amended or supplemented includes 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 at such time made, not misleading, the Company will (i) notify promptly the Representative 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 period to amend or supplement the applicable Prospectus or Disclosure Package or to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered file under the Exchange Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 document incorporated by reference therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus order to comply with the Act or the Exchange Act or the respective rules thereunder(including, including in connection with use or delivery without limitation, Section 10(a)(3) of the Final ProspectusAct), the Company will (i) to promptly notify promptly the Representative of each Manager and file such event, (ii) document and prepare and file with the Commission, subject furnish without charge to each Manager and to any dealer in securities as many written and electronic copies as such Manager may from time to time reasonably request of an amended Prospectus or Disclosure Package or a supplement to the second sentence of paragraph (a) of this Section 5, an amendment Prospectus or supplement or new registration statement which will correct such statement or omission or effect such compliance, ;
(iiif) use its best efforts to have any amendment To pay the required Commission filing fees relating to the Registration Statement or new registration statement declared effective as soon as practicable Shares within the time required by, and otherwise in order to avoid any disruption in use compliance with, the applicable rules of the Final Prospectus and Commission (iv) supply any supplemented Final Prospectus without regard to the Representative in such quantities as the Representative may reasonably request.proviso to Rule 456(b)(1)(i), if applicable);
(eg) As soon as practicable, the Company will To make generally available to its security holders and to securityholders as soon as practicable, but in any event not later than sixteen months after the Representative a consolidated effective date of each applicable Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement or statements of the Company and its subsidiaries, subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative rules and counsel for the Underwriters, without charge, signed copies regulations of the Registration Statement Commission thereunder (including exhibits thereto) and to each other Underwriter a copy of including, at 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent option of the Company, it has Rule 158);
(h) Not to engage in any of the following at any time when sales of the Shares have been made through or to any Manager but have not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus settled or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by when the Company has outstanding with any Manager any instructions to sell Shares but such instructions have not been fulfilled or cancelled, in each case without giving such Manager at least three business days’ prior written notice specifying the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description nature and date of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
proposed transaction: (i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or 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)of, directly or indirectly, including or file with the filing (or participation in the filing) of Commission a registration statement with under the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct relating to, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case Company that are substantially similar to the Preferred StockShares, including but not limited to any options or warrants to purchase shares of Stock or any securities that are convertible into or exchangeable for for, or that represent the preferred stock right to receive, Stock or any such substantially similar securities securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the Companyeconomic consequences of ownership of the Stock or any such other securities, except for whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise (other than the Shares to be sold hereunder or pursuant to employee stock option plans described in the Disclosure Package or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of such sale or instruction, as applicable);
(i) During any period when the delivery of a prospectus (whether physically or through compliance with Rule 153, Rule 172 or any similar rule) would be required in connection with the offering or sale of any Shares pursuant hereto, to (i) file all documents required to be filed with the Securities.Commission pursuant to the Exchange Act within the time periods prescribed by, and satisfying the requirements of, the Exchange Act and (ii) otherwise comply with the Exchange Act and the Act;
(j) During a period of twelve (12) months from the effective date of each applicable Registration Statement, to furnish to the Managers copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to the Managers (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Managers may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission);
(k) To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the applicable Prospectus under the caption “Use of Proceeds”;
(l) To use its best efforts to list, subject to notice of issuance, the Shares on the Exchange;
(m) Upon request of any Manager, to furnish, or cause to be furnished, to such Manager an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Manager for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;
(n) To advise the Managers immediately after the Company receives notice or otherwise obtains knowledge, at any time during the term of this Agreement, of any information or fact that would alter or affect any opinion, certificate, letter or other document provided to any Manager pursuant to Section 6 (including pursuant to Section 3(o));
(o) On (i) the date hereof and (ii) any other date on which (A) the offering of Shares under this Agreement is re-commenced following the termination of a suspension of sales hereunder (including pursuant to the proviso below); (B) any new Registration Statement becomes effective under the Act; (C) any Registration Statement, Basic Prospectus or Prospectus is amended or supplemented (other than (x) an amendment or supplement effected by the filing with the Commission of any document incorporated by reference therein, which will be subject to clauses (D) and (G) below, (y) any prospectus supplement filed pursuant to Rule 424 and containing solely the information referred to in Section 3(r) or (z) a prospectus supplement relating solely to an offering of securities other than the Shares); (D) there is filed with the Commission any document incorporated by reference into the applicable Prospectus (including any Current Report on Form 8-K that contains financial statements, supporting schedules or other financial data, but excluding any other Current Report on Form 8-K unless any Manager otherwise reasonably requests following the filing of such Current Report); (E) a Terms Agreement has been executed and delivered by the Company and any Manager; (F) any Shares are delivered to any Manager as principal at a Time of Delivery pursuant to a Terms Agreement; or (G) any Manager, upon reasonable advance notice to the Company, otherwise reasonably requests (each such date or time in preceding clauses (i) or (ii), a “Representation Date”), to furnish or cause to be furnished to the Managers (or, in the case of clause (ii)(G), to such Manager) the opinions, letters, certificates and other documents referred to in subsections (b), (c), (d), (e) and (k) of Section 6; provided, however, that if, on any Representation Date (other than a Representation Date pursuant to clause (i) or (ii)(E) or (F) above), no instruction or request to a Manager to sell any Shares has been delivered or is pending or otherwise effective, then the Company may, at its election, suspend the requirement to so deliver such opinions, letters, certificates and other documents on such Representation Date, provided that the Company may not thereafter instruct or otherwise request any Manager, and no Manager will have any obligation, to sell any Shares pursuant hereto unless the Company first so delivers such opinions, letters, certificates and other documents on and as of a date (which date will be deemed to be a Representation Date pursuant to clause (i)(A) above) that is on or after the last Representation Date on which the Company elected to so suspend such delivery and before the time the Company delivers such instruction or request. For the avoidance of doubt, references in each such opinion, letter, certificate or document to the Registration Statement, Prospectus and Disclosure Package (including indirectly by reference to the representations and warranties contained herein) will, pursuant to the definition of such terms herein, refer to the applicable Registration Statement, Prospectus and Disclosure Package as then amended or supplemented.
(p) On each Representation Date, if reasonably requested by any Manager, to conduct a due diligence session, in form and substance satisfactory to the Managers, which will include representatives of the management and the independent accountants of the Company. The Company will comply cooperate timely with all applicable securities and other laws, rules and regulationsany reasonable due diligence request from or review conducted by any Manager or its agents or counsel from time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information and available documents and access to appropriate officers and agents of the Sarbanes Oxley Act Company during regular business hours and at the Company’s principal offices, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company and its officers and agents, as any Manager may reasonably request;
(q) If, to the Company’s knowledge, the conditions set forth in Section 6(a), 6(f) or 6(j) or the Company’s representations and warranties herein shall not be true and correct on the applicable Settlement Date, to offer to any person who has agreed to purchase Shares from the Company as the result of 2002an offer to purchase solicited by any Manager the right to refuse to purchase and pay for such Shares;
(r) To disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, the number of Shares sold pursuant to this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales during the applicable annual or quarterly period;
(s) To ensure, prior to instructing or requesting any Manager to sell Shares, that (i) the Company has obtained all necessary corporate authority for the offer and sale of such Shares; and (ii) there are at all times sufficient shares of Stock to provide for the issuance, free of any preemptive rights, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to this Agreement; and
(t) To cooperate with the Managers and use its best reasonable efforts to cause permit the Company’s directors Shares to be eligible for clearance and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, settlement through the provisions facilities of the Sarbanes Oxley Act of 2002DTC.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement theretoin a form approved by the Underwriters, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within under the time period prescribed Act and will provide evidence satisfactory to notify the Representative Underwriters promptly of such timely filing. The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Bonds and of the offering, and will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Underwriters promptly of such filing. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly advise the Representative Underwriters (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have has been filed or shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed and shall furnish the Underwriters with copies thereof, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and Issuer Free Writing Prospectus, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Bonds for offering or sale in any jurisdiction or jurisdiction, (vi) of the institution initiation or threatening of any proceeding or examination for any such purpose. The Company will use its best efforts to prevent the issuance , and (vii) of any such stop order request by the Commission for the amending or the occurrence of any such suspension or objection to the use supplementing of the Registration Statement andStatement, upon such issuanceany Preliminary Prospectus, occurrence the Prospectus or notice of objectionany Issuer Free Writing Prospectus or for additional information. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an Company will not file (i) any amendment to the Registration Statement or supplement to the Prospectus (excluding documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Underwriters a new registration statement copy for your review prior to filing and using will not file any such proposed amendment or supplement to which the Underwriters reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Underwriters a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and the Company will consult with the Underwriters as to any comments which the Underwriters make in a timely manner with respect to such document. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), the Company will promptly file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds. Following the Closing Date and, for as long as a prospectus relating to the Bonds is required to be delivered under the Act, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company will promptly use its best efforts to have obtain the withdrawal of such order. In the event of the Company’s receipt of a notice objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, the Company will promptly take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Bonds by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement declared effective as soon as practicablestatement).
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to whether physically or through compliance with Rule 172172 under the Act or any similar rule), any event occurs as a result of which the Final Pricing Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final ProspectusCommission thereunder, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representative a consolidated Underwriters an earnings statement or statements (which need not be audited) of the Company and its subsidiariesCompany, for a twelve-month period beginning after the date of the Prospectus filed pursuant to Rule 424(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish deliver to the Representative and counsel for the Underwriters, without charge, signed Underwriters conformed copies of the Registration Statement Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectus (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits theretoall documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including whether physically or through compliance with Rule 172 under the Act or any similar rule), all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement quantities as the Underwriters may reasonably request.
(e) Other than the Final Term Sheet prepared and filed pursuant to Section 4(a) hereof, without the prior written consent of the Underwriters, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 under the Act.
(f) The Company will promptly file all material required to be satisfied filed by the Company with the Commission pursuant to Rule 172), 433(d) under the Act and will retain as many copies and to the extent required by Rule 433 under the Act all Issuer Free Writing Prospectuses not required to be filed with the Commission pursuant to the rules and regulations under the Act. If at any time after the date hereof any events shall have occurred as a result of any Preliminary Prospectus, the Final Prospectus and which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Underwriters and, upon their request, file such document and any supplement thereto prepare and furnish without charge to each Underwriter as many copies as the Representative Underwriters may from time to time reasonably request. The Company request of an amended or supplemented Issuer Free Writing Prospectus that will pay the expenses of printing correct such conflict, statement or other production of all documents relating to the offering that are required to be prepared, furnished omission or delivered by the Companyeffect such compliance.
(g) The Company will arrangefurnish such information, if necessary, for execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions within in the United States as the Representative Underwriters may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the SecuritiesBonds; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or will obtain, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the RepresentativeUnderwriters, upon request, copies of all reports and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(i) During the period beginning on from the date hereof of this Agreement and continuing to and including the Closing Date, the Company will notnot offer, sell, or otherwise dispose of any long-term debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of Citigroup Global Markets Inc.the Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably consent shall not 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securitiesunreasonably withheld.
(j) The In connection with the offering of the Bonds, until the Underwriters shall have notified the Company of the completion of the sale of the Bonds, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the Company’s directors and officerspurpose of creating actual, in their capacities as suchor apparent, to comply with such lawsactive trading in, rules and regulations, including, without limitationor of raising the price of, the provisions of the Sarbanes Oxley Act of 2002Bonds.
(k) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterBonds.
Appears in 1 contract
Samples: Underwriting Agreement (Southwestern Public Service Co)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the Act and (v) of the receipt by the Company 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 will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event there occurs as a an event, the result of which which, in the opinion of counsel for the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) subject to paragraph (a) of this Section 6, amend or supplement the Disclosure Package to eliminate or correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event there occurs as a an event, the result of which which, in the Final opinion of counsel for the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement that will eliminate or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(d) [Reserved].
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(g) The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gh) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject themselves to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell or contract to sell, pledge (other than on behalf of an Affiliate of the Company) or otherwise dispose of, (or enter into any transaction that 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, including the public filing (or participation in the public filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock (“Related Securities”); or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement. The foregoing sentence shall not apply to (A) any shares of Common Stock issued by the Company upon the exercise of options to purchase shares of Common Stock, upon the vesting of restricted stock awards or upon the settlement of restricted stock unit awards, in each case disclosed in the Disclosure Package and the Prospectus, (B) the grant of awards pursuant to the Company’s incentive plans or otherwise pursuant to equity compensation arrangements with directors, officers, employees and consultants of the Company and its subsidiaries, in each case, as described in the Disclosure Package and the Prospectus, (C) the issuance or grant of shares of securities, including restricted stock awards, options to purchase shares of common stock, restricted stock units or any other stock-based awards, in each case, registered or to be registered pursuant to any registration statement on Form S-8 pursuant to any benefit plans or arrangements (including, without limitation, employee stock purchase plan), in each case, as described in the Disclosure Package and the Prospectus, (D) the issuance of shares of Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition, or (E) the issuance of shares of Common Stock, of restricted stock awards or of options to purchase shares of Common Stock, in each case, in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of immediately preceding clauses (D) and (E), the aggregate number of restricted stock awards and shares of Common Stock issued in connection with, or issuable pursuant to the exercise of any options issued in connection with, all such acquisitions and other transactions does not exceed 5% of the aggregate number of shares of common stock outstanding immediately following the consummation of the offering of the Securities and the recipient of the shares of Common Stock agrees in writing to be bound by the same terms described in the agreement attached hereto as Exhibit A.
(j) [Reserved].
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (iv) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(h) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (v) the approval of the Securities for book entry transfer by DTC; (vi) any filings required to be made with the FINRA (including filing fees, fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $35,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (viii) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and one counsel for the Selling Stockholders and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (l) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”). Each Selling Stockholder agrees with the Underwriters to pay (directly or by reimbursement) all fees and expenses incident to the performance of such Selling Stockholder’s obligations under this Agreement with respect to stock transfer taxes, stamp duties and other similar taxes incident to the sale and delivery of the Underwritten Securities to be sold by such Selling Stockholder to the Underwriters hereunder. This Section 6(l) shall not affect or modify any separate, valid agreement relating to the allocation of payment of expenses between the Company, on the one hand, and any Selling Stockholder, on the other hand.
(m) [Reserved].
(n) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the offering thereofRepresentatives before first use. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (i) During and will promptly notify the Company if any such proceeding against it is initiated during the period beginning on a prospectus is required by the date hereof and continuing Act to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition delivered (whether by actual disposition physically or effective economic disposition due to cash settlement or otherwise) by through compliance with Rule 172 under the Company Act or any affiliate similar rule) in connection with any sale of the Company or any person in privity with the Company or any affiliate of the CompanySecurities), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the Act and (v) of the receipt by the Company 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 will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event there occurs as a an event, the result of which which, in the opinion of counsel for the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) subject to paragraph (a) of this Section 6, amend or supplement the Disclosure Package to eliminate or correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event there occurs as a an event, the result of which which, in the Final opinion of counsel for the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement that will eliminate or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(d) [Reserved].
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(g) The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(gh) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject themselves to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell or contract to sell, pledge (other than on behalf of an Affiliate of the Company) or otherwise dispose of, (or enter into any transaction that 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, including the public filing (or participation in the public filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock (“Related Securities”); or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of the Underwriting Agreement. The foregoing sentence shall not apply to (A) any shares of Common Stock issued by the Company upon the exercise of options to purchase shares of Common Stock, upon the vesting of restricted stock awards or upon the settlement of restricted stock unit awards, in each case disclosed in the Disclosure Package and the Prospectus, (B) the grant of awards pursuant to the Company’s incentive plans or otherwise pursuant to equity compensation arrangements with directors, officers, employees and consultants of the Company and its subsidiaries, in each case, as described in the Disclosure Package and the Prospectus, (C) the issuance or grant of shares of securities, including restricted stock awards, options to purchase shares of common stock, restricted stock units or any other stock-based awards, in each case, registered or to be registered pursuant to any registration statement on Form S-8 pursuant to any benefit plans or arrangements (including, without limitation, employee stock purchase plan), in each case, as described in the Disclosure Package and the Prospectus, (D) the issuance of shares of Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition, (E) the issuance of shares of Common Stock, of restricted stock awards or of options to purchase shares of Common Stock, in each case, in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of immediately preceding clauses (D) and (E), the aggregate number of restricted stock awards and shares of Common Stock issued in connection with, or issuable pursuant to the exercise of any options issued in connection with, all such acquisitions and other transactions does not exceed 5% of the aggregate number of shares of common stock outstanding immediately following the consummation of the offering of the Securities and the recipient of the shares of Common Stock agrees in writing to be bound by the same terms described in the agreement attached hereto as Exhibit A, or (F) the Share Repurchase.
(j) [Reserved].
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (iv) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(h) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (v) the approval of the Securities for book entry transfer by DTC; (vi) any filings required to be made with the FINRA (including filing fees, fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $35,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (viii) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and one counsel for the Selling Stockholders and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (l) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”). Each Selling Stockholder agrees with the Underwriters to pay (directly or by reimbursement) all fees and expenses incident to the performance of such Selling Stockholder’s obligations under this Agreement with respect to stock transfer taxes, stamp duties and other similar taxes incident to the sale and delivery of the Underwritten Securities to be sold by such Selling Stockholder to the Underwriters hereunder. This Section 6(l) shall not affect or modify any separate, valid agreement relating to the allocation of payment of expenses between the Company, on the one hand, and any Selling Stockholder, on the other hand. (m) [Reserved].
(n) The Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the offering thereofRepresentatives before first use. Any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (i) During and will promptly notify the Company if any such proceeding against it is initiated during the period beginning on a prospectus is required by the date hereof and continuing Act to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition delivered (whether by actual disposition physically or effective economic disposition due to cash settlement or otherwise) by through compliance with Rule 172 under the Company Act or any affiliate similar rule) in connection with any sale of the Company or any person in privity with the Company or any affiliate of the CompanySecurities), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement, any Rule 462(b) Registration Statement or any supplement to (including the Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission SEC 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, (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act and (v) of the receipt by the Company 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 will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 in order to make the statements therein in the light of the circumstances under which they were made at such time made, not misleading, the Company will (i) notify promptly the Representative 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (“Rule 172”)), 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 in order to make the statements therein in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusAct, the Company promptly will (i) notify promptly the Representative of any such event, ; (ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated an earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc.X.X. Xxxxxx Securities LLC, offer, sell, contract to sell, pledge, or otherwise dispose of 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, including the filing (or participation in the filing) of a registration statement with the Commission SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities shares of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Class A Common Stock or any securities convertible into into, or exercisable, or exchangeable for, shares of Class A Common Stock; or publicly announce an intention to effect any such transaction, for a period of 45 days after the preferred date of this Agreement, provided, however, that the Company may (i) grant and award or issue and sell Class A Common Stock, restricted stock, restricted stock units and/or other awards contemplated pursuant to any employee stock option plan or such substantially similar other employee compensation or incentive plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) may issue Class A Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (iii) file one or more registration statements on Form S-8, (iv) offer, issue and sell shares of Class A Common Stock or any securities convertible into, or exercisable or exchangeable for, Class A Common Stock, in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership) and (v) comply with any requests made in accordance with the provisions of the Cactus LLC Agreement by holders of CW Units (other than the executive officers and directors of the Company) to redeem or purchase CW Units (together with the same number of shares of Class B Common Stock) for an equal number of shares of Class A Common Stock; provided, except for however, that in the offering case of this clause (iv), (x) any such offer, issuance or sale shall not exceed 5% of the Securities.
outstanding shares of Class A Common Stock on an as converted basis and (jy) The Company will comply with all applicable any recipient of such securities shall execute and other laws, rules and regulations, including, without limitation, deliver to the Sarbanes Oxley Act of 2002, and use its best efforts to cause Representative a lock-up letter described in Section 6(j) hereof. Notwithstanding the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitationforegoing, the provisions of this Section 5(g) shall not apply to or prohibit: (A) the Sarbanes Oxley Act sale of 2002shares of Class A Common Stock by the Company to the Underwriters pursuant to this Agreement or (B) distributions of shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, such capital stock to stockholders of the Company; provided, however, that in the case of this clause (B) each distributee shall execute and deliver to the Representative a lock-up letter described in Section 6(j) hereof.
(kh) The Company will not take, directly or indirectly, any action designed to or that would might constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on The New York Stock Exchange (the “NYSE”); (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification not to exceed $10,000); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings not to exceed $25,000); (viii) the investor presentations on any “road show” in connection with the marketing of the Securities, including, without limitation, expenses associated with any electronic road show, travel and lodging expenses of the representatives and officers of the Company and one-half of the cost of any aircraft used in connection with the roadshow; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that, except as provided in this Section 5(i) and Sections 7 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, 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 with the SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representative or the Company makes no agreement is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the activities of any UnderwriterSEC, legending and record keeping.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters [Addressee] ------------------------- that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Agreement, the Company will not file any amendment of to the Registration Statement or any supplement to any Preliminary the Prospectus or which relates to the Final Prospectus Notes unless the Company has previously furnished the Representative [Addressee] with a copy thereof for their its review prior to filing and will not file any such proposed amendment or supplement to which they [Addressee] reasonably objectobjects. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable Subject to the Representative with foregoing sentence, the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise cause the Representative (i) when the Final Prospectus, and any Prospectus together with each supplement thereto, shall have been thereto to be filed with the Commission pursuant to Rule 424(b). The Company will promptly advise [Addressee] of (i) the filing of any amendment or supplement to the Prospectus, including the filing of documents incorporated therein by reference, (ii) when, prior to termination the filing or effectiveness of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, (iii) of any comments from the Commission relating to or any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal thereof. Upon [Addressee]'s request, the Company will within a reasonable time inform [Addressee] of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the aggregate principal amount of Notes registered under the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethat remain unissued.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior when a prospectus relating to the filing of Notes is required to be delivered under the Final Prospectus pursuant to Rule 424(b)Act, any event occurs or condition exists as a result of which which, in the Disclosure Package reasonable opinion of counsel for [Addressee] or counsel for the Company, the Registration Statement or the Prospectus as then amended or supplemented would not reflect any facts or events which, individually or in the aggregate, represent a fundamental change as contemplated by Item 512 of Regulation S-K under the Act in the information set forth in the Registration Statement or the Prospectus, as then amended or supplemented, and/or would include any an untrue statement of a material fact fact, or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time made, not misleading, or if, in the Company will (i) notify promptly the Representative so that any use reasonable opinion of the Disclosure Package may cease until either such counsel, it is necessary at any time to amend or supplement the Registration Statement or the Prospectus, as then 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusAct, the Company promptly will (i) notify [Addressee] and, if so notified by the Company, [Addressee] shall forthwith suspend solicitation of offers to purchase Notes or sales, as the case may be, and cease using the Prospectus as then amended or supplemented; the Company will promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (aSection 3(a) of this Section 5above, an amendment or supplement to such Registration Statement or new registration statement Prospectus which will include such facts or events and/or will correct such statement or omission or effect such compliancecompliance and will supply such amended or supplemented Prospectus to [Addressee] in such quantities as [Addressee] may reasonably request. If such amendment or supplement, (iiiand any documents, certificates and opinions furnished to [Addressee] pursuant to Section 3(g) use its best efforts below in connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to have any [Addressee], upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order Statement, [Addressee] will resume its obligation to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus solicit offers to the Representative in such quantities as the Representative may reasonably requestpurchase Notes hereunder.
(ec) As soon The Company will (i) comply, in a timely manner, with all applicable requirements under the Exchange Act relating to the filing with the Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act and, if then applicable, of the Company's proxy statements pursuant to Section 14 of the Exchange Act and (ii) undertake to obtain the written consent of the Company's independent accountants as practicable, to the incorporation by reference in the Registration Statement of the audited financial statements reported on by them and contained in the Company's annual reports on Form 10-K under the Exchange Act.
(d) The Company will make generally available to its security holders and as soon as practicable, but not later than 45 days after the end of the 12-month period (except not later than 90 days if such period covers the Company's fiscal year) beginning at the end of the fiscal quarter of the Company during which the Registration Statement or a post-effective amendment thereto (as defined in Rule 158 under the Act) relating to the Representative a consolidated Notes became effective, an earnings statement or statements of the Company and its consolidated subsidiaries, which will need not be audited, covering such 12-month period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission issued thereunder (including Rule 158158 under the Act).
(e) The Company will furnish to [Addressee] and counsel for [Addressee] copies of the Registration Statement, the Prospectus and all amendments of and supplements to such documents (including exhibits thereto and documents incorporated by reference therein), in each case as soon as available and in such quantities as [Addressee] reasonably requests.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of take all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, action reasonably necessary for the qualification of the Securities Notes for sale under the laws of such jurisdictions within the United States as the Representative [Addressee] may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall Notes pursuant to this Agreement and will arrange for the Company 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 it to service of process in suits, other than those arising out determination of the offering or sale legality of the Securities, in any jurisdiction where it is not now so subjectNotes for purchase by institutional investors.
(ig) The Company agrees thatshall furnish to [Addressee] such documents, unless it has obtained or will obtain, as the case may be, the prior written consent certificates of officers of the Representative, Company and (ii) each Underwriter, severally and not jointly, agrees with opinions of counsel for the Company thatrelating to the business, unless it has obtained or will obtain, as the case may be, the prior written consent operations and affairs of the Company, it has not made the Registration Statement and will not make the Prospectus, any offer relating to amendments or supplements thereto, the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed Indentures, the Notes, this Agreement, the Procedures and the performance by the Company with and [Addressee] of their respective obligations hereunder and thereunder as [Addressee] may from time to time prior to the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description termination of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingthis Agreement reasonably request.
(ih) During If so provided in the Terms Agreement, during the period beginning of time commencing with the date of any such Terms Agreement and ending on the date hereof and continuing Purchase Date of the Notes subject to and including the Closing Datesuch Terms Agreement, the Company will shall not, without the prior written consent of Citigroup Global Markets Inc.the Purchaser, offer(1) issue or announce the proposed issuance of any of its debt securities with substantially similar terms to the Notes being purchased pursuant to the Terms Agreement or (2) purchase any of its Notes.
(i) The Company shall, sellwhether or not any sale of Notes is consummated, contract pay all expenses incident to sellthe establishment of the Notes program (including reasonable fees and disbursements of counsel to [Addressee]) and to the performance of its obligations under this Agreement and any Terms Agreement, pledgeincluding, or otherwise dispose without limitation, the fees and disbursements of its accountants and counsel, the cost of printing (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 otherwiseother production) by the Company or any affiliate and delivery of the Company or any person Registration Statement and the Prospectus, all amendments and supplements thereto, the Indentures, and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements (including fees of counsel) incurred in privity connection with the Company or any affiliate qualification of the Company), directly or indirectly, including the filing (or participation in the filing) Notes for sale and determination of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 eligibility for investment of the Exchange ActNotes under the securities or Blue Sky laws of such jurisdictions as [Addressee] may designate, any preferred securities, any preferred stock or any other securities the fees and disbursements of the CompanyTrustees, including the fees of any backup undertaking of such preferred stock or other securities, agency that rates the Notes and the fees and expenses in each case that are substantially similar to the Preferred Stock, or connection with any securities convertible into or exchangeable for the preferred stock or such substantially similar securities listing of the Company, except for Notes on the offering of the SecuritiesNew York Stock Exchange.
(j) The Company will comply with all applicable securities and other lawsshall, rules and regulationswhether or not any sale of Notes is consummated, reimburse the Agent for any out-of-pocket expenses (including, without limitation, advertising expenses approved by the Sarbanes Oxley Act Company in its discretion and the reasonable fees and disbursements of 2002counsel to the Agent) incurred heretofore or hereafter by the Agent in connection with the offering, purchase and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions sale of the Sarbanes Oxley Act Notes. Any such out-of- pocket expenses shall be payable upon the receipt by the Company from the Agent of 2002an itemized statement therefor.
(k) Each time the Registration Statement or the Prospectus is amended or supplemented, including by incorporation by reference upon the filing of any annual report on Form 10-K or quarterly report on Form 10-Q (other than by an amendment or supplement providing solely for a change in the interest rate or formula, redemption date(s) and price(s), repayment date(s) and price(s), currency, denominations, interest payment dates, maturity and other terms set forth on the face of the Notes or for a change deemed immaterial in the reasonable opinion of [Addressee]), the Company will deliver or cause to be delivered forthwith to [Addressee] a certificate of the Company signed by the President or the Vice President and Treasurer of the Company (or another officer or officers acceptable to [Addressee]), dated the date of the effectiveness of such amendment or the date of filing of such amendment or supplement, as the case may be, in form reasonably satisfactory to [Addressee], to the effect that the statements contained in the certificate referred to in Section 4(d) that was last furnished to [Addressee] (either pursuant to Section 4(d), 5(b) or pursuant to this Section 3(k)) are true and correct at the time of the effectiveness of such amendment (which for the purposes of this Agreement in the case of the filing of materials incorporated by reference shall be the date of the filing of such materials) or the filing of such amendment or supplement, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement, as amended at the time of effectiveness of such amendment, and to the Prospectus, as amended and supplemented at the date of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 4(d) but modified, if necessary, to relate to the Registration Statement, as amended at the time of the effectiveness of such amendment, and to the Prospectus, as amended and supplemented at the date of such certificate.
(l) Each time the Registration Statement or the Prospectus is amended or supplemented, including by incorporation by reference upon the filing of any annual report on Form 10-K or quarterly report on Form 10-Q, the Company shall furnish to or cause to be furnished forthwith to [Addressee] written opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxx X. Xxx, Vice President, General Counsel and Secretary of the Company, to the effect set forth in Exhibits C and D hereto, respectively, or in either such case other counsel satisfactory to [Addressee] (it being agreed that, in the case of the opinion to the effect set forth in Exhibit C hereto, an opinion of the General Counsel and Secretary of the Company will be satisfactory to [Addressee]); provided, however, that such opinion need not be furnished with respect to an amendment or supplement providing solely for a change in the interest rate or formula, redemption date(s) and price(s), repayment date(s) and price(s), currency, denominations, interest payment dates, maturity and other terms set forth on the face of the Notes or for a change deemed immaterial in the reasonable opinion of [Addressee]. Any such opinion shall be dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to [Addressee]. In lieu of such opinion, either counsel last furnishing such an opinion to [Addressee] may furnish to [Addressee] a letter to the effect that [Addressee] may rely on such last opinion to the same extent as though it were dated the date of such letter and authorizing reliance on such last opinion (except that statements in such last opinion will be deemed to relate to the Registration Statement, as amended at the time of the effectiveness of such amendment, and to the Prospectus, as amended and supplemented at the date of such letter).
(m) Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information, the Company shall cause Ernst & Young LLP, its independent public accountants, forthwith to furnish [Addressee] a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to [Addressee], of the same tenor as the letter referred to in Section 4(e) and the provisions of such letter described in clause (i) of Exhibit F hereto but modified to relate to the Registration Statement and Prospectus, as amended and supplemented to the date of such letter, and of the same tenor as the portions of the letter referred to in clauses (ii) and (iii) of Exhibit F hereto with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, that if the Registration Statement or the Prospectus is amended or supplemented solely to include or incorporate by reference financial information with respect to a fiscal quarter, Xxxxx & Young LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless any other information included or incorporated by reference therein of an accounting, financial or statistical nature is of such a nature that, in the reasonable judgment of [Addressee], such letter should cover such other information.
(n) Each acceptance by the Company of an offer for the purchase of Notes hereunder (including any purchase by [Addressee] as principal and each execution and delivery by the Company of a Terms Agreement with [Addressee]) shall be deemed to be an affirmation that the representations and warranties of the Company contained in or made pursuant to this Agreement to [Addressee] pursuant hereto are true and correct as of the time of such acceptance or as of the date of such Terms Agreement, as the case may be, as though made at and as of such date and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent, or [Addressee], of the Notes relating to such acceptance or as of the Purchase Date relating to such sale as the case may be, as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended and supplemented to each such time).
(o) The Company will not takecomply, directly or indirectlyand represents and warrants that it has complied, any action designed with the provisions of that certain Florida act relating to or that would constitute or that might reasonably be expected to cause or result inthe disclosure of doing business with Cuba, under the Exchange Act or otherwise, stabilization or manipulation codified as Section 517.075 of the price of any security of Florida Statutes, and the Company to facilitate the sale rules and regulations thereunder or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriteris exempt therefrom.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior At any time when a prospectus relating to the termination of Notes is required to be delivered under the offering of the Securities1933 Act, the Company will not file or make any amendment of to the Registration Statement or any supplement to any Preliminary the Prospectus (except for periodic or current reports filed under the Final Prospectus 1000 Xxx) unless the Company has furnished each of the Representative Underwriters a copy for their its review prior to filing and will not file given the Underwriters a reasonable opportunity to comment on any such proposed amendment or supplement supplement. Each of the Underwriters shall make its responses thereto, if any, promptly. Immediately following the execution of this Agreement, the Company will prepare a prospectus supplement, in form approved by the Underwriters, setting forth the principal amount of Notes and their terms not otherwise specified in the base prospectus, the Underwriters’ names, the price at which the Notes are to which they reasonably objectbe purchased by the Underwriters from the Company, the principal amount of Notes to be purchased by each Underwriter, the initial offering price, the selling concession and reallowance, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Notes. The Company will promptly cause the Final Prospectus, properly completed, and any supplement thereto, Prospectus to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) under the 1933 Act Regulations in the manner and within the time period prescribed by such rule and will provide evidence satisfactory to the Representative Underwriters of such timely filing. The Company will promptly advise the Representative Underwriters (i) at any time when a prospectus relating to the Final ProspectusNotes is required to be delivered under the 1933 Act, and when any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall have been filed or become effective, (iiiii) of any request by the Commission or its staff for any post-effective amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening by direct communication with the Company of any proceeding for that purpose purpose, and (viv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening by direct communication with the Company of any proceeding for such purpose. The Company will promptly effect the filing of the Prospectus necessary pursuant to Rule 424(b) under the 1933 Act Regulations and will take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or suspending the occurrence of any such suspension or objection to the use effectiveness of the Registration Statement and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, If at any time prior when a prospectus relating to the filing of Notes is required to be delivered under the Final Prospectus pursuant to Rule 424(b)1933 Act, any event occurs as a result of which the Disclosure Package Prospectus would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time not misleadingmade, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus to comply with the 1933 Act or the Exchange 1934 Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such eventUnderwriters, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative Underwriters in such quantities as the Representative Underwriters may reasonably request.
(ec) During the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, (i) the Company will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will furnish to the Underwriters copies of such documents, (ii) on or prior to the date on which the Company makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the 1934 Act, the Company will furnish to the Underwriters the information contained or to be contained in such announcement or document, (iii) the Company will furnish to the Underwriters copies of all other material press releases or announcements to the general public, and (iv) the Company will immediately notify the Underwriters of (a) any decrease in the rating of the Notes or any other debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1000 Xxx) or (b) any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, as soon as the Company learns of any such decrease or notice. Any requirement to furnish documents or information to the Underwriters pursuant to this covenant shall be deemed satisfied by the posting of such documents or information on the Company’s website or the filing thereof with the Commission on EXXXX.
(d) As soon as practicable, but not later than 90 days after the close of the period covered by the earnings statement, the Company will make generally available to its security holders and to the Representative a consolidated Underwriters an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158158 under the 1933 Act.
(fe) Upon requestSo long as the Underwriters are required to deliver a prospectus in connection with sales of the Notes, the Company will furnish to the Representative Underwriters and counsel for the Underwriterstheir counsel, without charge, signed such 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gf) The Company will arrangeendeavor, if necessaryin cooperation with the Underwriters, to arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions within of the United States of America as the Representative Underwriters may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesNotes; provided provided, however, that in no event shall the Company will not be obligated to qualify to do business in file any jurisdiction where it is not now so qualified or to take any action that would subject it general consent to service of process in suits, other than those arising out of the offering or sale of the Securities, to qualify as a foreign limited liability company in any jurisdiction where in which it is not now so subjectqualified.
(g) The Company will apply the net proceeds from the offering of the Notes in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(h) The Company will not, during the period of 30 days from the date on which the Notes are purchased by the Underwriters sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable into or exercisable for the Notes or any debt securities substantially similar to the Notes, without the prior written consent of the Underwriters.
(i) The Company agrees thatshall, unless it has obtained whether or will obtainnot any sale of the Notes is consummated, as pay all expenses incident to the case may beperformance of its obligations under this Agreement, including the fees and disbursements of its accountants and its counsel, the prior written consent cost of printing or other production and delivery of the RepresentativeRegistration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and related documents delivered to the Underwriters, the cost of preparing, printing, packaging and delivering the Notes, the fees and expenses incurred in compliance with Section 4(f) hereof, the fees and disbursements of the Trustee (including legal fees and disbursements, if any, of counsel to the Trustee), the fees of any agency that rates the Notes, and (ii) each Underwriter, severally and not jointly, agrees any fees payable in connection with the Company that, unless it has obtained acceptance of the Notes for clearance and settlement through the facilities of The Depository Trust Company. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or will obtain, as the case may beSection 7(a)(i) hereof, the prior written consent Company shall reimburse the Underwriters for all of the Company, it has not made and will not make any offer its reasonable out-of-pocket expenses relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description offer and sale of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to Notes contemplated by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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 indirectlythis Agreement, including the filing (or participation in the filing) reasonable fees and disbursements of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable counsel for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesUnderwriters incurred in connection therewith.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatRepresentatives:
(a) Prior If necessary, to (i) file (A) an amendment to the termination of the offering of the SecuritiesRegistration Statement, the Company will not file any (B) a post-effective amendment of to the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to Rule 430A under the applicable paragraph Act or (C) a new or additional registration statement pursuant to Rule 462(b) or (c) under the Act, in each case, as soon as practicable after the execution and delivery of Rule 424(bthis Agreement; (ii) within the time period prescribed and will provide evidence satisfactory to the Representative Underwriters of such timely filing. The Company will promptly ; and (iii) use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time.
(b) To comply fully and in a timely manner with the applicable provisions of Rule 424, Rule 430A and Rule 462 under the Act.
(c) To advise the Representative Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Final Prospectus, Registration Statement has become effective and when any supplement thereto, shall have been filed with the Commission pursuant post-effective amendment to Rule 424(b)it becomes effective, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of amendments to the Registration Statement, Statement or for any supplement amendments or supplements to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the or qualification of the Securities Shares for offering or sale in any jurisdiction jurisdiction, or the institution or threatening initiation of any proceeding for such purposepurposes, and (iv) of the happening of any event during the period referred to in paragraph (f) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, or of the necessity to amend or supplement the Registration Statement or Prospectus (as then amended or supplemented) to comply with the Act or any other law. The If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts make every reasonable effort to prevent obtain the issuance withdrawal or lifting of any such stop order or at the occurrence of any such suspension or objection earliest possible time.
(d) To furnish to the use Representatives, without charge, a signed copy of the Registration Statement andas first filed with the Commission and each amendment to it, upon including all exhibits and documents incorporated therein by reference, and to furnish to the Representatives such issuancenumber of conformed copies of the Registration Statement as so filed and of each amendment to it, occurrence without exhibits, as the Representatives may reasonably request.
(e) Not to file any amendment or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment supplement to the Registration Statement Statement, whether before or a new registration statement and using its best efforts after the time when it becomes effective, to have such make any amendment or new registration statement declared effective as soon as practicablesupplement to the Prospectus or to make any filing with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act of which (i) the Representatives shall not previously have been advised or (ii) to which the Representatives shall reasonably object, unless the Company reasonably determines, based on the advice of counsel, that such filing is necessary to comply with all applicable rules and regulations.
(bf) The Company will prepare Promptly after the Registration Statement becomes effective, and from time to time thereafter for such period as a final term sheetprospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, containing solely a description of final terms to furnish to each Underwriter as many copies of the Securities Prospectus (and of any amendment or supplement to the offering thereof, in a form acceptable to you (the “Final Term Sheet”Prospectus) and to file as such term sheet pursuant to Rule 433(d) within the time required by such RuleUnderwriter may reasonably request.
(cg) If, at any time prior to during the filing of the Final Prospectus pursuant to Rule 424(bperiod specified in paragraph (f), any event occurs shall occur as a result of which it becomes necessary to amend or supplement the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary Prospectus 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, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until misleading or if it is amended or supplemented, (ii) necessary to 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunderAct, including in connection with use or delivery of the Final Prospectus, the Company will forthwith to (i) notify promptly the Representative of such event, (iii)(A) prepare and file with the Commissionfile, subject to the second sentence provisions of paragraph (ae) of this Section 5above, with the Commission an appropriate amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement Prospectus or new registration statement declared effective (B) file under the Exchange Act a document to be incorporated by reference in the Prospectus, so that in either case, the statements in the Prospectus, as soon as practicable so amended or supplemented, will not, in order to avoid any disruption in use the light of the Final circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the Act and the Exchange Act, and (ivii) supply any supplemented Final Prospectus furnish to each of the Representative in Representatives, such quantities number of copies of such documents as the Representative such Underwriter may reasonably request.
(eh) As soon as practicable, the Company will make generally available Prior to its security holders and to the Representative a consolidated earnings statement or statements any public offering of the Company and its subsidiariesShares, which will satisfy (i) to cooperate with the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed copies of Underwriters in connection with 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 registration or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions within of the United States as the Representative Representatives may reasonably designaterequest, will maintain (ii) to continue such qualifications registration or qualification in effect so long as required for the distribution of the SecuritiesShares and (iii) 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 the Company shall not be obligated required to qualify to do business in any jurisdiction as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suitssuits or taxation, other than those arising out of as to matters and transactions relating to the offering or offer and sale of the SecuritiesShares, in any jurisdiction where it is not now so subject.
(i) The Company agrees thatWhether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, unless it has obtained or will obtainto pay all costs, as expenses, fees and taxes incident to (i) the case may bepreparation, printing, filing and distribution to the prior written consent Underwriters of the RepresentativeRegistration Statement (including financial statements and exhibits), each preliminary prospectus and all amendments and supplements to any of them prior to or during the period specified in paragraph (f); (ii) each Underwriter, severally the printing and not jointly, agrees with delivery to the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent Underwriters of the CompanyProspectus and all amendments or supplements to it during the period specified in paragraph (f); (iii) the transfer and delivery of the Shares to the Underwriters, it has not made including any transfer or other taxes payable thereon; (iv) the printing and will not make delivery of this Agreement and the preliminary and final blue sky memoranda (including in each case any offer disbursements of counsel for the Underwriters relating to such printing and delivery); (v) the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company registration with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms Shares; (vi) the registration or qualification of the Securities Shares for offer and sale under the offering thereof. Any such free writing prospectus consented to by the Representative securities or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate blue sky laws of the Company or several states and any person in privity with the Company or any affiliate of the Company), directly or indirectly, foreign jurisdiction (including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable reasonable fees and disbursements of counsel for the preferred stock Underwriters relating to such registration or such substantially similar securities qualification and memoranda relating thereto); (vii) filing fees incident to securing any required review by the National Association of the CompanySecurities Dealers, except for Inc. ("NASD") in connection with the offering of the SecuritiesShares; (viii) furnishing such copies of the Registration Statement, the preliminary prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriters; (ix) fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel); (x) printing certificates representing the Shares; (xi) the costs and charges of any transfer agent, registrar and/or depositary; and (xii) all other reasonable costs and expenses incident to the performance by the Company and the Selling Stockholders of their other obligations under this Agreement (other than each parties' respective share of the costs and expenses incurred in connection with the roadshow; provided that the Underwriters shall pay or cause to be paid the costs and expenses of private air travel for the Company's officers and employees in connection with attending or hosting meetings with prospective purchasers of the Shares).
(j) The Company will comply with If the Registration Statement at the time of the effectiveness of this Agreement does not cover all applicable securities and other laws, rules and regulations, including, without limitation, of the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as suchShares, to comply file a Rule 462(b) Registration Statement with the Commission registering the Shares 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 laws, rules and regulations, including, without limitation, Rule 462(b) Registration Statement at the provisions time of the Sarbanes Oxley Act filing thereof or to give irrevocable instructions for the payment of 2002.
(ksuch fee pursuant to Rule 111(b) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any UnderwriterAct.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative reasonably may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.), in connection with its review of the offering; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description press release issued April 29, 2008 announcing the offering of the Securities (the “April 29 Press Release”) and the press release issued April 30, 2008 announcing the final terms of the Securities (the “April 30 Press Release” and, together with the April 29 Press Release, the “Press Releases”). The Press Releases and the offering thereof. Any any such free writing prospectus consented to by the Representative or the Company is are each hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) During the For a period beginning on of 60 days from the date hereof and continuing to and including of the Closing DateFinal Prospectus, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities shares of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, Common Stock or any securities convertible into into, exercisable for, or exchangeable for the preferred stock or such substantially similar securities shares of the CompanyCommon Stock, except for (i) the offering of the Securities, (ii) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company and (iii) the issuance of Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding on the date hereof.
(ji) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kj) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
(k) The Company shall use its reasonable efforts to furnish to the Representative a letter addressed to the Representative substantially in the form of Exhibit A hereto from each of the persons listed in Exhibit B hereto.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatPurchaser as follows:
(a) Prior During the period from the date of this Agreement to the termination Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true as of the offering Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date.
(b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the The Company will not permit any of its Affiliates to, nor will it permit any person acting on its behalf (iother than the Purchaser) notify promptly the Representative so to, resell any Securities that have been acquired by 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 requestthem.
(d) IfThe Company will not permit any of its Affiliates, at or any time when a prospectus relating person acting on its behalf, to engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestSecurities.
(e) As soon as practicable, the The Company will not permit any of its Affiliates, or any person acting on its behalf, to, directly or indirectly, make generally available offers or sales of any security, or solicit offers to its security holders and to buy any security, under circumstances that would require the Representative a consolidated earnings statement or statements registration of any of the Company and its subsidiaries, which will satisfy Securities under the provisions of Section 11(a) of the Act and Rule 158Securities Act.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay not permit any of its Affiliates, or any person acting on its behalf, to engage in any form of “general solicitation or general advertising” (within the expenses meaning of printing Regulation D) in connection with any offer or other production sale of all documents relating to any of the offering that are required to be prepared, furnished or delivered by the CompanySecurities.
(g) The Company will arrange, if necessary, for the qualification So long as any of the Securities for sale are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution section 6 of the Securities; provided that Exchange Act or quoted in no event shall a U.S. automated interdealer quotation system, (ii) the Company shall not be obligated an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suitsbe, other than those arising out registered under section 8 of the offering or sale Investment Company Act and (iii) the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3).
(h) The Company shall furnish to (i) the holders and subsequent holders of the Securities, (ii) Xxxxx Bros. Financial Management LLC (at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other address as designated by Xxxxx Bros. Financial Management LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Xxxxx Bros. Financial Management LLC), a duly completed and executed certificate in any jurisdiction where it is the form attached hereto as Annex D, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not now so subjectlater than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company.
(i) The Company agrees thatshall, unless during any period in which it has obtained is not subject to and in compliance with section 13 or will obtain, as the case may be, the prior written consent 15(d) of the RepresentativeExchange Act, or it is not exempt from such reporting requirements pursuant to and (iiin compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent holder of the Company, it has not made Securities 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” each prospective purchaser (as defined in Rule 405designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be filed provided by Rule 144A(d)(4) under the Securities Act. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description benefit of the final terms Purchaser, the holders of the Securities and the offering thereof. Any such free writing prospectus consented to prospective purchasers designated by the Representative or the Company is hereinafter referred Purchaser and such holders, from time to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treattime, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other lawsnot, rules and regulations, includinguntil one hundred eighty (180) days following the Closing Date, without limitationthe Purchaser’s prior written consent, the Sarbanes Oxley Act of 2002offer, and use its best efforts sell, contract to cause the Company’s directors and officerssell, in their capacities as such, grant any option to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not takepurchase or otherwise dispose of, directly or indirectly, (i) any action designed to Securities or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security other securities of the Company having terms substantially identical to facilitate the sale Securities other than as contemplated by this Purchase Agreement or resale (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities of the Securities, except that the Company makes no agreement as having terms substantially identical to the activities of any UnderwriterSecurities.
Appears in 1 contract
Samples: Purchase Agreement (Amcomp Inc /Fl)
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus filings necessary pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 3(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon as practicable, the The Company will make generally available to its security holders and to cooperate with the Representative a consolidated earnings statement in endeavoring to qualify the Securities for offering and sale under the applicable securities laws of such jurisdictions (domestic or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(aforeign) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided the Company will pay the expenses of printing or other production of all documents relating to the offering that are not be required to be prepared, furnished qualify as a foreign corporation or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification to file a general consent to service of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business process in any jurisdiction where it is not now so qualified or required to take any action that would subject it file such a consent. The Company will, from time to service of process time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in suits, other than those arising out of effect for so long a period as the offering or sale Representative may reasonably request for distribution of the Securities.
(g) The Company will make generally available to its security holders, in any jurisdiction where as soon as it is practicable to do so, an earnings statement or statements (which need not now be audited), which will satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act and will advise the Representative in writing when such statement has been so subjectmade available.
(h) No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company or other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representative.
(i) The Company agrees that, unless will use the net proceeds received by it has obtained or will obtain, as from the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms sale of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation manner specified in the filing) General Disclosure Package and in the Prospectus under “Use of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the SecuritiesProceeds.”
(j) The Company will comply cooperate with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, Representative and use its best commercially reasonable efforts to cause permit the Company’s directors offered Securities to be eligible for clearance and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, settlement through the provisions facilities of the Sarbanes Oxley Act of 2002DTC.
(k) The Company will maintain a trustee, paying agent and registrar for the Securities.
(l) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(n) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(o) During the 12-month period following the Closing Date, the Company will use its commercially reasonable efforts to qualify and elect to be treated as a regulated investment company under Subchapter M of the Code and to maintain such qualification and election in effect for each full fiscal year during which it is a business development company under the 1940 Act.
(p) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the activities Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which they the Representative reasonably objectobjects. The Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A under the 1933 Act, or filing of the Prospectus is otherwise required under Rule 424, the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall will have been filed (if required) with the Commission pursuant to Rule 424(b)424 or when any Rule 462(b) Registration Statement will have been filed with the Commission, (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall will have been filed or become effective, (iii3) 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, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or or, to the knowledge of the Company, threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuance, occurrence or notice of objectionif issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare comply with the requirements of Rule 430B under the 1933 Act and will notify the Representative immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or the filing of a final term sheetnew registration statement or any amendment or supplement to the Prospectus or for additional information, containing solely a description (iv) the issuance by the Commission of final terms any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering thereofof the Securities. The Company will promptly effect the filings required under Rule 424, in a form acceptable to you (the “Final Term Sheet”) manner and to file such term sheet pursuant to Rule 433(d) within the time period required by Rule 424, notify the Representative of the filing thereof, and take such Rulesteps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) If, If at any time prior when the Prospectus is required by the 1933 Act or the Exchange Act to the filing be delivered in connection with sales of the Final Prospectus pursuant to Rule 424(b)Securities, any event occurs will occur or condition will exist as a result of which it is necessary, in the Disclosure Package would include any reasonable opinion of outside counsel to the Underwriters or the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it will be necessary, in the reasonable opinion of such outside counsel, at any such time to amend the Registration Statement, or to amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will (i) promptly prepare and file with the Commission, such amendment or supplement as may be necessary to correct such statement or omission or to comply with such requirements, provided that the Company shall not make any filing to which the Representative reasonably objects, (ii) use its best efforts to have such amendment declared effective as soon as practicable, and (iii) furnish to the Representative, without charge, such number of copies of such amendment, supplement or new registration statement as the Representative may reasonably request.
(d) The Company will cooperate with the Representative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided the Company will not be required to qualify as a foreign corporation, to become subject to taxation as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified, subject to taxation or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the 1933 Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will make available to the Representative at or before the Closing Date, a copy (which may be conformed) of the signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the 1933 Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event will occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made at such time made, not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not conflict with the information contained in the light of the circumstances under which they were made not misleadingRegistration Statement then on file, or if it shall be is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus General Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusany law, the Company promptly will (i) notify promptly the Representative of such eventprepare, (ii) prepare and file with the Commission, subject Commission (if required) and furnish to the second sentence of paragraph (a) of this Section 5, Underwriters and any dealers an appropriate amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably requestGeneral Disclosure Package.
(eh) As soon as practicable, the The Company will make generally available to its security holders and holders, as soon as it is practicable to the Representative a consolidated do so, an earnings statement or statements of the Company and its subsidiaries(which need not be audited), which will satisfy the provisions requirements of Section 11(a) of the 1933 Act and Rule 158.
(f) Upon request, 158 under the Company 1933 Act and will furnish to advise the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, in writing when such statement has been so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectmade available.
(i) The No offering, sale, short sale or other disposition of any debt securities issued or guaranteed by the Company agrees thator other securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company or derivative of debt securities issued or guaranteed by the Company (or agreement for such) will be made for a period of 45 days after the date of the Prospectus, unless it has obtained directly or will obtainindirectly, as by the case may be, Company otherwise than hereunder or with the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitationapply the net proceeds of its sale of the Securities as set forth in the Registration Statement, the Sarbanes Oxley Act of 2002, General Disclosure Package and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002Prospectus.
(k) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(l) The Company will maintain a trustee, paying agent and registrar for the Notes.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(n) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement as will not be required to provide the activities Underwriters with reports it is required to file with the Commission under the Exchange Act.
(o) The Company will use its reasonable best efforts to effect within thirty (30) days of any Underwriterthe Closing Date and to maintain the listing of the Notes on Nasdaq.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to (including the Final Prospectus or any Preliminary Prospectus or Prospectus) to the Final Base Prospectus unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement without the consent of the Representatives, which consent shall not be unreasonably withheld, unless the Company is required by law to which they reasonably objectmake such filing before consent can be given. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, subject to Section 5(b), any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement, of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose, (v) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act and (vvi) of the receipt by the Company 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 purposepurpose or pursuant to Section 8A of the Act. The Company will use its best reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a the form acceptable to approved by you (the “Final Term Sheet”) and to attached as Schedule IV hereto and file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 or the Final Prospectus, as then amended or 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 or the circumstances then prevailing not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package or the Final Prospectus may cease until it is amended or supplemented, ; (ii) amend or supplement the Disclosure Package or the Final Prospectus to correct such statement or omission, ; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request, provided, however, that before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such proposed amendment or supplement to which the Representatives reasonably object, except as otherwise may be required by law.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Disclosure Package or 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Disclosure Package or the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Disclosure Package or the Final Prospectus and (iv) supply any supplemented Disclosure Package or Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative Representatives for a consolidated period of twelve months following the Execution Time, an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(g) The Company will use its reasonable efforts to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, will designate and maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees thatBefore preparing, unless it has obtained using, authorizing, approving, referring to or will obtainfiling any Issuer Free Writing Prospectus, as and before filing any amendment or supplement to the case may beRegistration Statement or the Final Prospectus, the prior written consent Company will furnish to the Representatives and counsel for the Underwriters a copy of the Representativeproposed Issuer Free Writing Prospectus, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained amendment or will obtain, as the case may be, the prior written consent of the Company, it has not made supplement for review and will not make prepare, use, authorize, approve, refer to or file any offer relating to the Securities that would constitute an such Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required file any such proposed amendment or supplement to be filed by which the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingRepresentatives reasonably object.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the The Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock debt securities issued or any guaranteed by the Company (other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of than the Securities) or publicly announce an intention to effect any such transaction, until and including the Closing Date.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, except that printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses reasonably incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company makes no agreement as to the activities of any Underwriterits obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Lear Corp)
Agreements of the Company. The Company agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary the Prospectus or the Final Prospectus any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The Company will promptly advise the Representative Representatives (i) 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, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A under the 1933 Act and (v) of the receipt by the Company 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. If required by Rule 430B(h) under the 1933 Act, Company will prepare a form of prospectus in a form approved by the Underwriters and to file such form of prospectus pursuant to Rule 424(b) under the 1933 Act not later than may be required by Rule 424(b) under the 1933 Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Underwriters promptly after reasonable notice thereof. The Company will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 which, in the opinion of counsel to the Underwriters, or counsel for the Company, the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, ; (ii) amend or supplement the Disclosure Package or file under the 1934 Act any documents incorporated by reference therein in order to comply with the 1933 Act or the 1934 Act to correct such statement or omission, ; and (iii) supply any amendment or supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(dc) If, at any during such period of time when after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriter a prospectus relating to the Securities is required by law to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), any event occurs occurs, as a result of which which, in the Final opinion of counsel to the Underwriters, or counsel for the Company, 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 in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectusapplicable law, the Company will promptly (i) notify promptly the Representative Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative several Underwriters and counsel for the Underwriters without charge in such quantities as the Representative they may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated Representatives (which may be satisfied by filing with the Commission’s XXXXX system) an earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(e) The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(f) Upon request, the The Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 1933 Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) during the Prospectus Delivery Period, as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyoffering.
(g) The Company will arrangeassist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions within the United States as the Representative Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subjectsubject or to subject itself to taxation in excess of a nominal amount in respect of doing business in any jurisdiction.
(ih) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Loop Capital Markets Inc.LLC, offer, sell, sell or contract to sell, pledge, pledge or otherwise dispose of of, (or enter into any transaction which that 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 Affiliate of the Company or any person in privity with the Company or any affiliate Affiliate of the Company), ) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange 1934 Act, any preferred securitiesother shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock (“Related Securities”); or publicly announce an intention to effect any preferred such transaction, for a period of 90 days after the date of the Underwriting Agreement. The foregoing sentence shall not apply to (A) any shares of Common Stock issued by the Company upon the exercise of options to purchase shares of Common Stock, upon the vesting of restricted stock awards, or upon conversion of the Company’s Series A Convertible Preferred Stock, in each case disclosed in the Disclosure Package and the Prospectus, (B) the grant of awards pursuant to employee benefit plans or arrangements described in the Disclosure Package and the Prospectus, (C) the issuance or grant of shares of Common Stock (including in connection with the settlement of restricted stock unit awards), restricted stock awards, options to purchase shares of common stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securitiesstock-based awards, in each case, to be registered pursuant to any registration statement on Form S-8 pursuant to employee benefit plans or arrangements described in the Disclosure Package and the Prospectus, (D) the issuance of shares of Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or business entity or pursuant to any employee benefit plan assumed by the Company in connection with any such acquisition or (E) the issuance of shares of Common Stock, of restricted stock awards or of options to purchase shares of Common Stock, in each case, in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case that are substantially similar of immediately preceding clauses (D) and (E), the aggregate number of restricted stock awards and shares of Common Stock issued in connection with, or issuable pursuant to the Preferred Stockexercise of any options issued in connection with, or any securities convertible into or exchangeable for the preferred stock or all such substantially similar securities acquisitions and other transactions does not exceed 5% of the Company, except for aggregate number of shares of common stock outstanding immediately following the consummation of the offering of the SecuritiesSecurities and the recipient of the shares of Common Stock agrees in writing to be bound by the same terms described in the agreement attached hereto as Exhibit A.
(i) [Reserved].
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act any of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company subsidiaries will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange 1934 Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company or any of its subsidiaries to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities; (iv) the printing (or reproduction) and delivery of any blue sky memorandum delivered in connection with the offering of the Securities; (v) the sales and delivery of the Securities by the Selling Stockholder; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 6(g) hereof (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $20,000); (vii) [reserved]; (viii) any filings required to be made with the FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $25,000; (ix) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”); (x) the costs and expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, (xi) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholder and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Notwithstanding the forgoing, except as specifically provided in this paragraph (k) and in Section 9 hereof, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities including the transportation and other expenses incurred by or on behalf of the Underwriters in connection with presentations to prospective purchasers of the Securities, including any “roadshow” (and including one half of the cost of all aircraft used in connection with any “roadshow”).
(l) [Reserved].
(m) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute, or otherwise use, refer to or distribute, an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Company makes no agreement as prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show, each furnished to the activities Representatives before first use. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. Each Underwriter, severally and not jointly, represents and agrees that it is not subject to any pending proceeding under Section 8A of the 1933 Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the period a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Securities).
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior During any period that a prospectus relating to the termination of Securities is required to be delivered under the offering of 1933 Act (but in any event through the SecuritiesClosing Date), the Company Company, subject to Section 5(b) of this Agreement, will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative comply with the Commission pursuant to the applicable paragraph requirements of Rule 415, Rule 430B and Rule 424(b) within under the time period prescribed 1933 Act and will provide evidence satisfactory to notify the Representative of such timely filing. The Company will promptly advise immediately, and confirm the Representative notice in writing, (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its order preventing or suspending the use of any preliminary prospectus, or the institution or threatening of any proceeding for that purpose and (v) under Section 8A of the receipt by the Company 1933 Act, or of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceeding proceedings for any of such purposepurposes. The Company will use its best efforts to prevent promptly effect the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet filings necessary pursuant to Rule 433(d424(b) within the time period required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs ) and will take such steps as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact it deems necessary to make ascertain promptly whether the statements therein form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the light of the circumstances under which they were made at event that it was not, it will promptly file such time not misleading, the Company will (i) notify promptly the Representative so prospectus. During any period 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Date), the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in circumstances where the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such requirement documents a reasonable amount of time prior to such proposed filing or use, as the case may be satisfied be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to Rule 172)the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing.
(c) Upon the Representative’s written request, the Company will deliver to the Representative, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the Representative’s request, will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then supplemented would in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingexisting at the time it is delivered to a purchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery requirements of the Final Prospectus1933 Act, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (aSection 5(b) of this Section 5Agreement, an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements, and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(ef) As soon If there occurs an event or development as practicablea result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will make generally available to its security holders and to promptly notify the Representative a consolidated earnings so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Companyomission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances the prevailing, not misleading, the Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will arrangeuse its commercially reasonable efforts, if necessaryin cooperation with the Underwriters, for the qualification of to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions within the United States (domestic or foreign) as the Representative Underwriters may reasonably designate, will designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided provided, however, that in no event the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now otherwise so subject.
(i) The Company agrees thatwill timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable, unless it has obtained or will obtainbut in any event not later than 16 months after the date hereof, as an earnings statement for the case may bepurposes of, and to provide the benefits contemplated by, the prior written consent last paragraph of Section 11(a) of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping1933 Act.
(ij) During the period beginning on from the date hereof and continuing to and including the Closing Datedate that is 90 days after the date of the Prospectus, the Company will notnot sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company that are substantially similar to the Securities or any securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or file or cause to be declared effective a registration statement under the 1933 Act with respect to any of the foregoing, without the prior written consent of Citigroup Global Markets Inc.the Representative, offerwhich may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, sell(ii) borrowings under the Credit Facility, contract to sell, pledge, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in iv) the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) filing by the Company or any affiliate of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company or any person in privity will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company or any affiliate of the Company)will maintain a trustee, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable paying agent and registrar for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(kn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Securities, except that as may be allowed by law.
(o) During the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company makes no agreement will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Date, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to cause each of the SBIC Funds to continue to comply with the requirements for qualification as an SBIC and to meet its obligations as an SBIC licensed by the SBA.
(s) The Company and its Subsidiaries shall comply in all material respects with all effective applicable provisions of the Sxxxxxxx-Xxxxx Act and the Commission’s published rules promulgated thereunder that are applicable to the activities Company and its Subsidiaries, as applicable.
(t) The Saratoga Entities shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Registration Statement, the Prospectus and General Disclosure Package, and each of the Saratoga Entities shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Company Material Adverse Effect.
(u) The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) material information relating to the Company and the assets managed by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any Underwritersignificant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s board of directors.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
a. The Company will notify the Representatives immediately, and confirm the notice in writing, (ai) Prior to the termination of the offering of the Securities, the Company will not file any amendment effectiveness of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement amendment thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering receipt of any comments from the Securities, any amendment to the Registration Statement shall have been filed or become effectiveCommission, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction or the institution or threatening initiation of any proceeding proceedings for such purposepurpose and (v) during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), of any change, or any event or occurrence which could result in such a change, in the Company's condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company or the happening of any event, including the filing of any information, documents or reports pursuant to the 1934 Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to state a material fact required by the 1933 Act or the 1933 Act Regulations to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus to comply with the 1933 Act, the 1933 Act Regulations or any other law. The Company will shall use its best efforts to prevent the issuance of any such stop order or order suspending the occurrence qualification or exemption of the Securities under any such suspension state securities or objection to Blue Sky laws, and, if at any time the use Commission shall issue any stop order suspending the effectiveness of the Registration Statement andStatement, upon or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company shall use every reasonable effort to obtain the withdrawal or lifting of such issuance, occurrence or order at the earliest possible time.
b. The Company will give the Underwriters notice of objection, its intention to obtain as soon as possible the withdrawal of such stop order prepare or relief from such occurrence or objection, including, if necessary, by filing an file any amendment to the Registration Statement (including any post- effective amendment), any Rule 462(b) Registration Statement, any Term Sheet or a new registration statement and using its best efforts to have such any amendment or new registration statement declared effective as soon as practicable.
supplement to the Prospectus (b) The including any revised prospectus or Term Sheet and preliminary prospectus which the Company will prepare a final term sheet, containing solely a description of final terms proposes for use by the Underwriters in connection with the offering of the Securities and which differs from the offering thereof, in a form acceptable to you (prospectus on file at the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus or Term Sheet and preliminary prospectus is required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus be filed pursuant to Rule 424(b)), whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of any Rule 462(b) Registration Statement, Term Sheet, amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such Rule 462(b) Registration Statement, Term Sheet, amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall object.
c. The Company has furnished or will deliver to the Underwriters and their counsel, without charge, two signed and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Underwriters may reasonably request.
d. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1934 Act, the 1933 Act Regulations or the rules and regulations of the Commission under the 1934 Act (the "1934 Act Regulations").
e. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act, the 1934 Act, the 1933 Act Regulations or the 1934 Act Regulations to be delivered in connection with sales of the Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Disclosure Package would reasonable opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement statements of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made existing at such the time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement the Disclosure Package delivered to correct such statement or omission, and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleadingpurchaser, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus in order to comply with the requirements of the 1933 Act or the Exchange 1933 Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusRegulations, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 55(b), an such amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to make the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus comply with such requirements and (iv) supply any supplemented Final Prospectus the Company will furnish to the Representative in Underwriters such quantities number of copies of such amendment or supplement as the Representative Underwriters may reasonably request.
(e) As soon as practicable, f. During the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements period of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon requestfive years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Representative Company mailed to shareholders or filed with the Commission or the Nasdaq National Market ("NASDAQ"), and (ii) from time to time such other information concerning the Company as you may request.
g. The Company will use its best efforts, in cooperation with counsel for to the Underwriters, without charge, signed copies to qualify the Securities for offering and sale under the applicable securities or Blue Sky laws of such states and other jurisdictions of the United States as the Representatives may designate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement (including exhibits theretoand any Rule 462(b) Registration Statement; provided, however, that the Company shall not be -------- ------- obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long reports as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain jurisdiction to continue such qualifications qualification in effect so long as required for a period of not less than one year from the distribution later of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out effective date of the offering or sale of the Securities, in Registration Statement and any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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 Company462(b), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters thatGKM as follows:
(a) Prior The Company shall not, during such period as the Prospectus is required by law to the termination be delivered in connection with sales of the offering of the SecuritiesShares by an underwriter or dealer, the Company will not file any amendment of or supplement to the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus Prospectus, unless the Company has furnished the Representative a copy for their review thereof shall first have been submitted to GKM within a reasonable period of time prior to the filing thereof and will GKM shall not file any such proposed amendment or supplement to which they reasonably object. have objected thereto in good faith.
(b) The Company will cause the Final Prospectus, properly completedshall notify GKM promptly, and any supplement theretoshall confirm such advice in writing, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any post-effective amendment to the Registration Statement shall have been filed or has become effective, (iiiii) of any request by the Commission for amendments or its staff for any amendment of supplements to the Registration Statement, Statement or for any supplement to the Final Prospectus or for any additional information, (iviii) of the commencement by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, including, without limitation, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or the threat thereof, (iv) of the happening of any event during the period mentioned in the second sentence of Section 4(e) hereof that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading and (v) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate representative of the Company or of any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with other communication from the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of relating to the Company, including the Registration Statement, any backup undertaking of such preferred stock preliminary prospectus or other securities, in each case that are substantially similar to the Preferred Stock, or Prospectus. If at any securities convertible into or exchangeable for time the preferred stock or such substantially similar securities Commission shall issue any order suspending the effectiveness of the Company, except for the offering of the Securities.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.Registration
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the several Underwriters thatas follows:
(a) Prior prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which they you reasonably object. The ; the Company will cause the Final Prospectus, properly completed, and any supplement thereto, thereto to be filed in a form acceptable to approved by the Representative Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing. The ; the Company will promptly advise the Representative Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (iii) 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, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The ; the Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence suspension or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.;
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) Ifif, 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 at such time or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative Representatives 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.;
(dc) Ifif, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative you in such quantities as the Representative you may reasonably request.;
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative Representatives and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any each Preliminary Prospectus, the Final Prospectus and any each Issuer Free Writing Prospectus and any supplement thereto as the Representative Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.offering;
(ge) The the Company will arrange, if necessary, endeavor to qualify the Shares for the qualification of the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as the Representative may Underwriters shall reasonably designate, will maintain request and to continue such qualifications qualification in effect so long as reasonably required for the distribution of the SecuritiesShares; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it file a general consent to service of process in suitsany jurisdiction;
(f) as soon as practicable, other than those arising out the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the offering or sale Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities, in any jurisdiction where it is not now so subject.Act and Rule 158;
(ig) The during a period of three years from the effective date of the Registration Statement, the Company will furnish to the Underwriters copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the NASDAQ Global Market; it being understood and agreed that posting such reports on the Commission’s XXXXX website and/or on the Company’s website shall be sufficient;
(h) the Company agrees that, unless it has or shall have obtained or will obtain, as the case may be, the prior written consent of the RepresentativeRepresentatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtainshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than ; provided that the Final Term Sheet described above or other free writing prospectuses containing solely a description prior written consent of the final terms parties hereto shall be deemed to have been given in respect of the Securities Free Writing Prospectuses included in Schedule III hereto and the offering thereof. Any any electronic road show; any such free writing prospectus consented to by the Representative Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The ”; the Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.;
(i) During for a period of 90 days after the period beginning on effective date of the date hereof and continuing to and including Registration Statement (the Closing Date“Lock-Up Period”), the Company will notnot (x) offer, pledge, announce the intention to sell, sell, contract to sell any option or contract to purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (y) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock, whether any such transaction described in clause (x) or (y) above is to be settled by delivery of Stock or such other securities, in cash or otherwise without the prior written consent of the Underwriters, other than the Shares to be sold hereunder and any shares of Stock of the Company issued upon the exercise of options granted and grants of additional options, shares and restricted stock units under existing employee equity compensation plans; provided, however, if (1) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Citigroup Global Markets Inc.Inc. waives, offerin writing, sell, contract such extension; and (ii) to sell, pledge, or otherwise dispose provide written notice to the Underwriters of (or enter into any transaction which is designed to, or might reasonably be expected to, event that would result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate an extension of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any preferred stock or any other securities of the Company, including any backup undertaking of such preferred stock or other securities, in each case that are substantially similar Lock-Up Period pursuant to the Preferred Stock, or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company, except for the offering of the Securities.foregoing;
(j) The the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, use the Sarbanes Oxley Act of 2002, and use its best efforts to cause net proceeds received by the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, Company from the provisions sale of the Sarbanes Oxley Act Shares pursuant to this Agreement in the manner specified in the Final Prospectus under the caption “Use of 2002.Proceeds”;
(k) The the Company will agrees not to (and to cause its Subsidiaries not to) take, directly or indirectly, any action designed to or that would constitute to, or that might reasonably be expected to to, cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation of the price Shares; and
(l) whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limiting the generality of the foregoing, all costs and expenses incident to the preparation, issuance, execution and delivery of the Shares, incident to the preparation, printing and filing under the Act of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them, incurred in connection with the registration or qualification of the Shares under the laws of such jurisdictions as the Underwriters may designate (including fees of counsel for the Underwriters and its disbursements), in connection with the listing of the Shares on the NASDAQ Global Market, related to the filing with, and clearance of the offering by, the NASD (including reasonable fees of counsel for the Underwriters and its disbursements), in connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the furnishing to the Underwriters and dealers of copies of the Base Prospectus, Preliminary Prospectus, Final Prospectus and Registration Statement, including mailing and shipping, as herein provided, any expenses incurred by the Company in connection with a “road show” presentation to potential investors, the cost of preparing stock certificates and the cost and charges of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of transfer agent and any Underwriterregistrar.
Appears in 1 contract
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to any Preliminary Prospectus or the Final Prospectus unless the Company has furnished the Representative a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto, to be filed in a form acceptable to the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i1) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v5) of the receipt by the Company 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 will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 at such time not misleading, the Company will (i) notify promptly the Representative 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.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), 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 not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify promptly the Representative of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representative in such quantities as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative a consolidated earnings statement or statements of the Company and its subsidiaries, subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representative and counsel for the Underwriters, without charge, signed 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 (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering that are required to be prepared, furnished or delivered by the Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions within the United States as the Representative reasonably may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the SecuritiesSecurities and will pay any fee of the Financial Industry Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.), in connection with its review of the offering; provided that in no event shall the Company 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 it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, 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” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Final Term Sheet described above or other free writing prospectuses containing solely a description of the final terms of the Securities and the offering thereof. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in 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, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any preferred securities, any shares of preferred stock or any other securities of the Company, including any backup back-up undertaking of such preferred stock or other securities, in each case that are substantially similar to the Preferred Stockpreferred stock, or any securities convertible into or exchangeable for the such preferred stock or such substantially similar securities of the Company, except for (i) the offering of the SecuritiesSecurities and (ii) issuances and sales of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or similar plan of the Company.
(j) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, except that the Company makes no agreement as to the activities of any Underwriter.
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